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Thoughts on the Continuum Between War and Crime:
My post last night on what to do with Al-Qaeda cell members who can't be charged in criminal court led to a fascinating and long comment thread — about 100 comments in two hours last night, plus another 120+ so far today — and I wanted to follow up and respond to some of the comments. In particular, I want to to talk about the continuum between fighting wars and fighting crime, and where I think the Al-Marri case fits on the spectrum.

  First, let's talk about some first principles. Our traditions know two basic ways of dealing with hostile actors: through war and through the criminal justice system. Within each system, there is a balance of factors at play in creating the rules. As a general matter, however, war is about self-protection: we try to disable the enemy from attacking us, and we take whatever measures are necessary to do that. There are limits, of course, conventions as to the laws of war and rules that each side adopts. But by and large the goal of self-protection by disabling future attacks takes priority.

  The modern criminal justice system is different. Incapacitation is only a small goal of that system. Rather, we are primarily interested in punishing to discourage future harmful acts and to further the ends of justice. We create law enforcement offices to investigate and prosecute the acts to make this possible, but we intentionally give them only limited powers because we don't want them to be the problem rather than the solution. We make the police jump through a lot of hoops and face punishment for breaking the rules: they have to prove their cases in particular ways, subject to strict evidentiary rules, confrontation rights, the exclusionary rule for search and seizure violations, and the like. The intuition is that limited police powers can prevent abuses while giving the police enough authority to investigate a reasonable amount of crime.

  What's interesting about these two different systems is that we can think of many cases that are somewhere along the continuum between the two poles. Consider the following persons detained by the United States in various circumstances:
1. U.S. citizen seized in Afghanistan, suspected of helping the Taliban forces in battle.
2. U.S. citizen suspected of blowing up a federal building as part of a plot to overthrow the U.S. government.
3. Suspected German soldier seized on the battlefield on D-Day in 1944.
4. Frenchman seized on the battlefield on D-day in 1944 suspected of helping the Germans.
5. Suspected crack cocaine dealer arrested in New Jersey.
6. Suspected Al Qaeda terrorist seized in U.S. after entering the U.S. to launch another 9/11.
7. Suspected Al Qaeda terrorist seized in Iraq after entering Iraq to join fight against U.S.
8. U.S. citizen who lives in Detroit and suspected to be a supporter of Al Qaeda; evidence suggests he sent $10,000 to a "charity" that is really a fun to help Al Qaeda launch more attacks in United States.
9. Egyptian citizen in the U.S. on a tourist visa seized in the U.S. on suspicion of planning attacks against a U.S. military base.
10. U.S. soldier in World War II suspected of being a double agent for the Germans.
  From the standpoint of policy, which of these cases should be handled under the "war" rules and which under the "crime" rules? And how do you tell the difference? My sense is that most people would say that there are difficult line-drawing issues here. Not everyone on this list should be dealt with under the "war" rules; not everyone on this list should be dealt with under the "crime" rules.

  Plus, we have a range of different criteria to use to determine which set of rules should apply, without any one criteria being the obvious factor that should control as a matter of policy. Some might want to focus on the seriousness of the perceived threat; others on whether there has been a formal declaration of war; others on whether a foreign country is involved; others on the individual's citizenship; others on the location or circumstances of the seizure.

  All of these are possible lines to draw, but none are widely agreed to be the most important; as a result, we have a continuum from war to crime with some cases seeming to be somewhere in the middle. (Plus, while court cases help resolve some issues at the far ends, the existing cases are not very consistent; compare Ex Parte Milligan with In re Quirin. There's not a lot of consistent guidance from them, so we have one side making Milligan arguments and the other side making Quirin arguments.)

  Now, back to my hypothetical in which we have admitted Al Qaeda terrorists who entered the U.S. to launch an attack but who can't be charged criminally. The Al-Marri case tells us that we have to deport them or set them free, a result that I described in one of my less articulate moments as "bizarre." Many commenters objected, asking, what's so bizarre about that — isn't that how the criminal justice system works? I think that's the wrong box, though; I see the case as much or more a "war" case than a "crime" case.

  Why? There are two primary reasons I see it that way. The first and most important is that members of a terrorist cell see themselves at war; they see themselves as soldiers in a holy war against the United States, and are acting accordingly. When a group sees themselves as soldiers at war trying to kill you, it seems fair that you should want to return the favor. Second, the members of the group have no connection to the United States other than as soldiers. The only reason they are here and not on the battlefield abroad is that they have chosen to attack the enemy's civilian population rather than its soldiers. They not only see themselves as soldiers; they are here as soldiers. When you put those two factors together, it seems to me that the case is as much or more a "war" case as a "crime" case. I realize it won't seem that way to everyone, but it does to me.

  Now, so far I've mostly ignored the question of how you know if someone is who they are suspected of being. "Sure," you might say, "maybe we detain an Al Qaeda cell member who enters the U.S. just to attack us — but how do we know who that is?" But here I think the Hamdi plurality had a pretty good solution — kinda made up as a matter of constitutional law, perhaps, but not bad as a pragmatic solution to the problem. Under the Due Process approach offered in Hamdi, an individual's procedural rights — what trial they get to test their detentions — is a sliding scale depending on who the person detained is, where they were detained, why, citizenship, etc. As I see it, it's a mushy balancing test that ends up largely replicating the continuum from crime to war; it's a blend of the crime model and the war model. The closer a case gets to a traditional crime category based on known and acknowledged criteria, the more Due Process rights resemble a criminal trial. On the other hand, the closer a case gets to the traditional war category based on known and acknowledged criteria, the more those rights resemble the traditional standards used in war.

  What I found odd about Al-Marri is that it seems to treat most cases of Al Qaeda terrorists here to attack us as crime cases. It seems to me like an effort to bypass the Supreme Court's sliding scale war-crime framework in Hamdi and to replace it with a regime in which all the Al-Qaeda bad guys are forced into the crime model. I don't think this is the right box, which is why I see the Al-Marri framework as odd.

  Anyway, that's my take. I realize a lot of commenters disagree, but I hope we can approach the disagreements in good faith with the understanding that we are all trying to grapple as best we can with a very difficult set of problems.
abw (www):
I saw Capt Ed post that Al-Marri had been held 4 years without even a status hearing. Is that correct?

I think any person should definately get a speedy hearing to at least determine status (ie, "war" or "crime" determination).
6.12.2007 7:47pm
George Weiss (mail):
oren..that was a really really thoughtful and much more cleare post than you posted before...im not suprised.. were all used to how well thought out and intelligent your views usually are

basically...you think al mari is definitly in the wrong box and other peoples due process' rights "to determine who they really are" (like the others mentioned in your list of people....)..are completely yet to be determined...

but so what...that doesn't stop us from saying that al mari is in the wrong box right now....

so let me officially say that i agree with that....


and yeah..people have been way to nasty to you...im surpised you eve nresponded to some of them
6.12.2007 7:52pm
SDProsecutor:
Orin-

I think you frame the issue in a way very conducive to further discussion, however, I'm not sure I agree that there is a continuum, as this characterization suggests that crime and criminal law are connected to combat.

I would argue that the two are wholly distinct, only tangentially related areas of inquiry. Consider that in Iraq during the invasion we (and I say 'we' because I was there) were informed of the 'hostile declaration'-- that certain forces had been declared hostile, and could presumptively be killed. (Contrasted with the standard 'hostile action/hostile intent' rules of engagement that are in effect otherwise.)

While a lot of police officers and prosecutors would enjoy a similar 'hostile declaration' about known gang members, the law does not, and should not allow for one. And I don't think there is a sliding scale of procedural or substantive protections on which the full protection of the fourth, fifth, sixth, and eight Amendments resides at one end, and presumptive shooting/bombing at the other.
6.12.2007 7:52pm
Erasmus (mail):
Orin, you offer two reasons why this is a "war" case, not a criminal case: (1) the terrorists see themselves at war with us and (2) they are here only to hurt us. But why do those distinctions matter? I fail to see a connection between those distinctions and the ultimate result of treating them radically different than somebody who only meets one of those requirements.

To go back to the McVeigh counter hypo from yesterday, why should the McViegh sympathizers get treated radically different simply because they fail to meet condition 2? Ultimately, they would cause just as much damage and their acts would be just as horrendous.

I also find it odd that the only work you're doing with your second criterion is to distinguish home grown terrorists from foreign born terrorists. In your hypothetical yesterday, would you have felt better about the result if the terrorists were born here, but decided to otherwise join in with Al Qaeda?

The problem, as another commentator noted yesterday, is that this is a very usual war unlike most wars this country has fought. We're not fighting an advancing army with guns in the streets, but instead fighting against individual cells, which are only loosely connected -- if in fact connected at all. That makes this "war" much more a crime fighting issue as opposed to a war issue. The front line people are investigators, informants, etc. -- not soldiers with guns.
6.12.2007 7:53pm
KeithK (mail):
Orin has it right that there is a continuum between "war" and "criminal". With all of the different factors I think it's hard to draw up clear rules to distinguish a case when it falls in the mushy middle. You either make a bright line rule that strongly favors one pole or you create guidelines that allow the executive some discretion for the hard cases. I prefer the latter with judicial oversight to make sure a case really is in the discretionary middle.
6.12.2007 7:56pm
wm13:
Indeed, this analysis would lead to what seems to me like a very fair, if somewhat ad hoc, conclusion: that the government may hold suspected Al Quaeda terrorists in military custody for "reasonable" period in order to interrogate them, but may not hold them "indefinitely" unless an administrative or military tribunal (with at least as much process as was afforded, say, Elian Gonzalez), determines that the person is indeed an Al Quaeda member. Those who are Al Quaeda members can be held indefinitely. This would seem to answer the concerns expressed by Prof. Kerr's critics.
6.12.2007 7:57pm
Markusha (mail):
Orin,

Thank you for a very thoughtful post.
I largely agree that there is a continuum between the "war" treatment and the "criminal justice" treatment. Noone would seriously argue that an Al Qaeda member captured after a gun battle in Afghanistan is entitled to the criminal justice treatment.
However, in my view at least, Al Marri case fits squarely within the criminal justice system, largely because of the reasons identified by the court majority. All we have is government's allegations that a resident of the US was a part of Al Qaeda and was involved in AQ sleeper cells here in the US. Moreover, he was originally indicted in a federal court and when faced with legal challenges under US criminal system he was classified as an enemy combatant. Allowing the government (especially THIS government which conservative Judge Ludwig from the 4th Circuit had previously accused of acting in bad faith in Padilla case) to get away with this is unjust and subverts the rule of law.

Now, I agree that the distinction b/w AQ abroad and AQ in US is perhaps not the best distinction. However, as you say, we need to draw a line somewhere, and to me, at least, a line drawn by the majority is perfectly acceptable one.

And it's slightly unfair (I believe it's an honest error) to state, as you do that the majority installs a regime in which all the Al-Qaeda bad guys are forced into the crime model. It is simply untrue: the majority clearly articulates that some AQ members (probably most) would not be covered by the decision because they would be either a) seized on or near a battlefield, b) would be in Afghanistan during the conflict b/w US and Taliban, and/or c) would directly participate in any hostilities against the US.

[OK Comments: You're absolutely right on that last point, Markusha; I have amended the post to be more accurate. Thanks.]
6.12.2007 7:58pm
OrinKerr:
Erasmus writes:
Orin, you offer two reasons why this is a "war" case, not a criminal case: (1) the terrorists see themselves at war with us and (2) they are here only to hurt us. But why do those distinctions matter? I fail to see a connection between those distinctions and the ultimate result of treating them radically different than somebody who only meets one of those requirements.
Erasmus, clearly we look at these issues differently. I'd be interested in a better sense of where you would draw the line. I'm curious, among the 10 examples I have in my post, which would you put in the "war" category? I don't mean to put you on the spot, but if you would offer some thoughts on that I think it would be helpful.
6.12.2007 8:02pm
George Weiss (mail):
i also wanted to thank orin and hope that he stays intrested and continues to post on this subject..despite the abuse hes taking...
6.12.2007 8:04pm
Zathras (mail):
Orin,

Thank you for an excellent post.

There are several continua involved here:

1. war-----police action----peacetime
2. military target--------domestic target
3. citizen-----resident alien------nonresident alien
4. foreign soil------US soil
5. enemy nation-----foreign terrorists---domestic terrorists

Each of these bring up different issues, and rather than having to pick one absolute--crime or war--it would be best to look at the individual rights and responsibilities involved and see which continuum is relevant to each right.
6.12.2007 8:05pm
Alaska Jack (mail):
I'm not a law professor or lawyer, or even a law-talking-guy. Heck, I've never even had jury duty. So I am acutely aware of just how much this is going to make me sound like a complete and total Philistine, but ...

I was surprised to learn that the courts have ruled that non-citizens, even the ones here legally, have the same fourth amendment rights under the constitution as citizens. I guess it makes a kind of sense of you think of the constitution as simply recognizing the unalienable rights all humans inherently possess. But on the other hand, a non-citizen is not "vested" into American society the way we are, and does not seem entitled to the same level of protection.

Before anyone gets too upset at me, let me emphasize that I think it is exceedingly good policy to generally treat non-nationals with dignity, respect and due process. I just don't think they should be entitled to the same fourth amendment protections as citizens. So as far as, for example, police searching their apartments or hotel rooms without a warrant, well, that's part of the bargain.

Finally, I don't think I'm being too parochial about this. If I went to live or work as a legal immigrant in another country, I would not expect to have all the rights granted to citizens of that country. Naturally, if the local authorities in Elbonia had a reputation for flinging foreigners into prison for no reason, I would take that into account when deciding whether to work there.

Like I said I am just a regular guy, not an expert on the law, so please be gentle as you all show me what an ignoramus I am.

- Alaska Jack
6.12.2007 8:09pm
Richard Aubrey (mail):
Here's a suggestion for distinguishing the two:
Criminals commit crimes to benefit themselves, even if it's a fight over a card game.
Terrorists commit their acts to benefit their cause.
Should be clear enough.
6.12.2007 8:21pm
Shelby (mail):
1) This may just be tangential, Oren, but to the extent your statement that the purpose of "war" is self-protection undergirds your analysis, it's erroneous. To a substantial extent war is aggressive, not defensive, on the part of at least one nation-combatant in most conflicts. Germany's invasion of Czechoslovakia, for example, can't be reasonably characterized as defensive. I'm inclined to see al-Qaeda's acts as aggressive, not defensive, though some may disagree.

2) Reference to the purpose of civil protections (such as the Fourth Amendment) may shed some light. They aren't intended to protect criminals from being exposed and convicted; they're intended to protect everyone else from being searched (to find evidence and identify criminals) and railroaded (or denied other important rights, as with the Fifth Amendment). If we treat foreign terrorists on US soil under military rules, rather than civilian, to what extent does that compromise the purposes of our criminal-law protections?

I suspect that the erosion of civilian rights could be significant, which is why I'm inclined to favor applying criminal and not military rules to enemies caught on US soil -- but I'm still undecided.
6.12.2007 8:24pm
OrinKerr:
Here's a suggestion for distinguishing the two:
Criminals commit crimes to benefit themselves, even if it's a fight over a card game.
Terrorists commit their acts to benefit their cause.
Should be clear enough.


I don't think a subjective test like that works, Richard. Imagine John believes in the cause of the Republican Party. Are any acts he commits to benefit the cause of the Republican party acts of terrorism?
6.12.2007 8:26pm
ATRGeek:
Like SDP, I think it is a mistake to view this as a continuum/line-drawing problem. We are actually talking about two distinct sorts of things (war and crime).

And I think we can see how this error leads to a lot of confusion and disagreement. On the one hand, it is easy to point out how people who associate with terrorist groups do not necessarily present an ordinary criminal problem. On the other hand, it is also easy to point out how these people do not necessarily present an ordinary POW problem. But people who assume this is a continuum implicitly assume that the farther they are getting from one pole, the closer they must be getting to the other pole. So, as people push out from both poles they are not actually approaching each other, but they think they should be and so are getting upset with each other.

As I suggested elsewhere, I think this situation could be solved with the conceptualization of a third category (rather than trying to find a line to draw on a nonexistent continuum). But even if one does not like that idea and wants to force a choice between the two existing categories, I think it is worth understanding that if this is not a continuum, then you can't show that these cases should be treated under one category simply because they do not fit well into the other category.
6.12.2007 8:27pm
Shelby (mail):
Richard Aubrey:

Presumably graffitists who want to draw attention to, say, racist oppression would then be classed as terrorists.
6.12.2007 8:29pm
just wondering:
I agree with those who argue that war and criminal prosecution are separate concepts rather than a continuum. It is not just a policy choice between means of dealing with enemies depending on how much due process they deserve or we deem convenient to provide. Criminal prosecution is how a sovereign treats its subjects and others subject to its jurisdiction who transgress its laws. War is a means of settling disputes between sovereigns and other belligerent powers, including organized and armed groups who are in a position to control sufficient territory and its population. Belligerents engaged in armed conflict are nominally equal in rights and obligations under the law of war. Criminals might arm themselves and threaten the state, but unless they control territory and people, there is no need to treat them as legitimate belligerents.

Milligan and Quirin illustrate this concept. Milligan was part of an armed organization that fancied itself to be at war with the Union. The fact that it plotted hostile acts against the government did not make it a belligerent power. The Confederacy was another story. Initially Lincoln threatened to treat them all as criminals and 'pirates,' but the Supreme Court in the Prize Cases found that Lincoln had in effect recognized their belligerency by implementing a blockade and treating captures as prisoners of war rather than trying them as criminals (although trying them for treason or war crimes was not foreclosed). The saboteurs in the Quirin case clearly belonged to a belligerent power. The Supreme Court described them as belligerents within the meaning of the law of war, which they contrasted with Milligan. Milligan, remember, could neither be held as a prisoner of war (i.e. detained without charge as a military capture) nor tried by military tribunal for 'violations of the law of war,' despite his plans to carry out hostile acts against the government during a war. The Nazi saboteurs were subject to detention and trial under the law of war because of their affiliation with the German government, and also apparently because of the circumstances of their arrival into the United States by enemy submarine. Most German spies and saboteurs in both world wars, and citizens accused of collaborating with them, were treated as criminals and tried in civilian court.
6.12.2007 8:41pm
Alaska Jack (mail):
Shelby --

Maybe they are, of a very very minor type. More accurately, I guess, since "terror" isn't part of their MO, maybe there is a better term to describe both graffiti artists and bombers. "Ideological Perpetrators" or somesuch.

- AJ
6.12.2007 8:41pm
Cassandrus (mail):
It seems to me fairly arbitrary where you draw the line between war and crime, as long as, under the war designation the usual protections afforded to POW's are enforced. If we want to treat captured Al Qaeda as if they are at war with us, then we don't get to execute them for, e.g., attacking our soldiers. (War crimes still apply, of course.) We can tweak the continuum however we like to best achieve the ends of public safety, but they should either get criminal protections or POW protections--no rabbit hole should exist between the two categories.
6.12.2007 8:42pm
Mark Field (mail):

The first and most important is that members of a terrorist cell see themselves at war; they see themselves as soldiers in a holy war against the United States, and are acting accordingly. When a group sees themselves as soldiers at war trying to kill you, it seems fair that you should want to return the favor.


I don't find this very persuasive. These guys are a bunch of nutcases. I see no reason why we should accept their view of reality. Acknowledging them as "soldiers" dignifies them. Plus, if we do say they're "soldiers" there's that whole Geneva issue.

Put it in the domestic context. There have been American "revolutionary" groups -- think the SLA or Weather Underground -- which would have considered themselves "soldiers" against America. We didn't treat them that way, nor should we have. We let the SWAT Team handle them.


Second, the members of the group have no connection to the United States other than as soldiers.


Again, put this in a domestic context. Someone like Cinque could easily be considered to have no real ties to America other than his birth here. He probably thought of himself as thoroughly alienated from our society. But it wouldn't make sense from our perspective to let his own motivations determine how we treat him.

As others pointed out in the other thread, any guarantee of rights imposes risks. If we don't want to accept those risks, we might as well decide now for Hobbes' Leviathan. That is the state for people whose primary motivation is fear. I'll pass.
6.12.2007 8:46pm
Erasmus (mail):
Orin, I haven't thought much about where I would draw the line mostly because I'm not familiar enough with the extensive case law and regulations dealing with war. I suspect any distinctions I would offer would not be very helpful. (That of course doesn't mean I'm not qualified to see problems in other people's distinctions. I just don't think your proposed distinctions, for example, serve any purpose other than to draw a line for the sake of drawing a line.)

I think one clear line, however, is that we'd have to be at war to begin with. And I don't think we're at war with various sleeper cells around the country who claim to be part of Al Qaeda. The war on terrorism seems to be substantially closer to the war on drugs than WWII for the reasons I mentioned in my prior post.

If the result of the war rules is that we can detain people until the end of the war, there must be a possibility to the end of the war. There's never going to be an end to the war on terror. As President Bush has noted, there's not going to be a signing ceremony on the deck of a carrier. If there were ever a parade to celebrate the end of the war on terrorism, you'd have terrorists plotting to kill people at the parade. And then we'd be at war again.

You noted in your original post the ratioanle behind war rules and criminal rules. Perhaps explaining how your two requirements to invoke the war rules has anything to do with that rationale would shed light on why it makes sense to adopt your proposal.
6.12.2007 8:49pm
George Weiss (mail):
i think we should all give more thought into the "how we know they are who they say they are" question

hypo:

X is an ameican citizen living in MD whos giving money to al queda...the gov swears they saw that guy in afganistan....

in such a case more important than what the rules for whatever box he winds up in...are the rules for determining how he got into that box.
6.12.2007 8:52pm
OrinKerr:
Erasmus,

So if the key question is whether we are "at war," in your view, what's your test for knowing whether we are at war? You seem to feel that we are not "at war" with Al Qaeda. But why not? Where we "at war" with Saddam Hussein? Just to be clear, I'm not asking what you think the right distinctions are as a matter of "case law and regulations", but rather, to the extent you are willing to answer, what you think the line should be as a normative matter.
6.12.2007 8:53pm
Apodaca:
Orin, it strikes me that the Suspension Clause shines a pretty bright light on the questions you raise. The Framers didn't merely know about the dichotomy between war and routine maintenance of civil order: they went so far as to expressly mention it in the Constitution. There is "Rebellion or Invasion," and there's everything else. (Strongly parallel is Art I sec. 8 concerning Congress's powers with respect to calling forth militias to "suppress Insurrections and repel Invasions.")

So it is unclear to me why, from a constitutional perspective, it is correct or appropriate to cast the debate in terms of a continuum with corresponding sliding scales. And Ex parte Milligan seems to me to underscore the point when it makes the following observations:
It follows, from what has been said on this subject, that there are occasions when martial rule can be properly applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war. Because, during the late Rebellion it could have been enforced in Virginia, where the national authority was overturned and the courts driven out, it does not follow that it should obtain in Indiana, where that authority was never disputed, and justice was always administered. And so in the case of a foreign invasion, martial rule may become a necessity in one state, when, in another, it would be 'mere lawless violence.'
6.12.2007 8:54pm
Shelby (mail):
Cassandrus:

To qualify as POWs, enemy combatants must comply with the prerequisites -- e.g. wearing distinctive uniforms when they engage in combat, attempting to minimize civilian casualties, etc. Captured terrorists (at least in the current conflict) are not, legally, POWs, though they have been accorded some of the privileges that POWs would receive. Legally (under applicable international conventions, as I understand them) we're perfectly entitled to execute them summarily. Though I believe there would sometimes be issues of proving they were terrorists, if not caught red-handed.

I don't mean to endorse such a course as a matter of policy, just to clarify how the laws of war apply here. (And I don't think attacks on armed US soldiers can legally be considered 'terrorism'.)
6.12.2007 8:57pm
Alaska Jack (mail):
Cassandrus said:


If we want to treat captured Al Qaeda as if they are at war with us, then we don't get to execute them for, e.g., attacking our soldiers.


I actually have a problem with this (revealing again, no doubt, my unsophisticated nature). The cornerstone of the Law of Armed Conflict isn't the inherent dignity of man or any of that blather -- it's reciprocity. We treat their prisoners the way we want them to treat ours. Doesn't game theory suggest that we actually execute one of our prisoners every time they execute one of theirs, until such time as they stop executing their prisoners?

- AJ
6.12.2007 8:59pm
eeyn524:
who the person detained is, where they were detained, why, citizenship,

It seems like this list leaves out the important question of who is taking the action. Police officers in general should follow the rules of criminal justice, regardless of who they are dealing with. Soldiers in general should follow the rules of war, regardless of who they are dealing with. For that reason we should (and do) have strict limits on how and when the military can be used domestically.

The continuum/sliding scale idea IMO has two main problems: first, it will tend to blur the distinction above, turning police officers partly military and vice versa.

The second issue is that state actors generally push the envelope of what they are allowed to do. The lack of a bright line will lead to continuous pressure by police to have their cases classified as more "war" related (and continuous hypotheticals posted by law professors along the same lines), and perhaps some pressure by the military to be allowed to intrude into civilian cases (e.g. subject a US civilian caught stealing from a base to military courts).
6.12.2007 9:00pm
Cornellian (mail):
I was surprised to learn that the courts have ruled that non-citizens, even the ones here legally, have the same fourth amendment rights under the constitution as citizens. I guess it makes a kind of sense of you think of the constitution as simply recognizing the unalienable rights all humans inherently possess. But on the other hand, a non-citizen is not "vested" into American society the way we are, and does not seem entitled to the same level of protection.

The text of the Bill of Rights does not distinguish between citizens and non-citizens, e.g. the First Amendment prohibiting interference with the free exercise of religion has no clause that exempts non-citizens from its protection. That's not to say that citizens and non-citizens are on identical footing though - a US citizen seized by the US government outside the USA will have constitutional rights, a non-citizen for the most part does not. In other words, although it's an oversimplification, US citizens enjoy the protection of the US Constitution vis a vis the US government wherever they may be, while non-citizens have the protection of the US Constitution vis a vis the US government only while inside the US.

Before anyone gets too upset at me, let me emphasize that I think it is exceedingly good policy to generally treat non-nationals with dignity, respect and due process. I just don't think they should be entitled to the same fourth amendment protections as citizens. So as far as, for example, police searching their apartments or hotel rooms without a warrant, well, that's part of the bargain.

No one's going to get upset with you (or at least I hope not). It's a perfectly reasonable question, especially for a lay person. It's a plausible policy position to state that non-citizens should have no fourth amendment protection, just not a position that's well supported by the text of the fourth amendment. I'd also ask whether you'd distinguish between someone here illegally, a foreign visitor here on vacation and a legal immigrant who has lived here for 20 years, has no plans to return to his country of birth, but is not a US citizen.

Finally, I don't think I'm being too parochial about this. If I went to live or work as a legal immigrant in another country, I would not expect to have all the rights granted to citizens of that country. Naturally, if the local authorities in Elbonia had a reputation for flinging foreigners into prison for no reason, I would take that into account when deciding whether to work there.

Foreigners living here don't have all the rights of US citizens. They can't vote, can't be elected to Congress or the Presidency and can be prohibited from entering the US or deported from the US. Even a foreigner who becomes a citizen can be stripped of his citizenship under certain circumstances whereas it's highly doubtful whether the federal government ever has the power to strip a US born citizen of his citizenship regardless of the circumstances.

We may well grant a much wider range of rights to foreigners than the government of that foreign country will grant to Americans moving there. Maybe that's one of the reasons why they want to come here, whereas hardly any Americans want to go over there.

Like I said I am just a regular guy, not an expert on the law, so please be gentle as you all show me what an ignoramus I am.

- Alaska Jack
6.12.2007 9:01pm
Waldensian (mail):
I think it isn't a continuum between "war and crime" that is at issue, strictly speaking, but rather a continuum between the objective indicia of war or crime that are present when we detain the targeted person.

When there are a lot of objective indicia of war -- uniform, foreign battlefield, large armies engaged in hostilities, etc. -- I think no one worries too much about denying somebody criminal process. In fact, we are comfortable with a general or president or other "unchecked" decisionmaker essentially wielding life or death power.

When there are a lot of objective indicia of crime -- civilian clothes, domestic city, "criminal" charges, no armies marching around -- most people worry about denying somebody criminal process. And our whole system has been set up to make sure that no unchecked decisionmaker wields life or death power.

When things get gray, the facts will matter, and reasonable minds may differ.

With all that said, I don't consider Al-Marri to be a particularly close case. Despite the objective indicia of war that were present (and certainly there were some), the key factor for me is the lack of exigency involved.

It may be very very important to act very very quickly in a "domestic/civilian/war" scenario (e.g., a Tet-like armed insurgency by groups of people in civilian clothes). It's not a nice picture, and it shocked a lot of people, but I'm really not sure the action depicted was unjustified. At all.

In all but the most extreme cases, however, the default rule for "domestic/civilian/war" has just got to be criminal rather than military. The danger of having unchecked executive power, at the stroke of a pen, able to detain someone indefinitely without trial (or worse) is just too great, and frankly too contrary to the reasons our country was founded.

The majority in Al-Maari wrote:

Put simply, the Constitution does not allow the President to order the military to seize civilians residing within the United States and detain them indefinitely without criminal process, and this is so even if he calls them "enemy combatants."

That just has to be true, except in the most extreme circumstances imaginable (ala the Tet offensive). I just don't see those circumstances existing in Al-Marri, not by a long shot. We've tried a number of domestic alleged terrorists in the criminal process and the Republic hasn't collapsed; there's just no reason we can't do it here.
6.12.2007 9:03pm
Shelby (mail):
Apodaca,

Under the rubric you advance (terminology in the Constitution) I'd class foreign terrorists on US soil as an "invasion". Technically that might justify suspension of habeas corpus.
6.12.2007 9:06pm
Apodaca:
Shelby, I respectfully suggest that the Framers had a rather narrower conception of "Invasion" -- or, in the alternative, that the burden is on you to demonstrate why the term is so elastic as to encompass persons like al-Marri.
6.12.2007 9:10pm
scote (mail):
There is a fundamental problem with this entire thread, which that the accusation is presumed to be true.

It should not be the case that one's rights diminish inversely with the gravity of the accusation, nor that the mere accusation of being a foreign terrorist should bypass the Bill of Rights. That is why we must treat suspects as such and the government must not have carte blanche to hold suspects indefinitely solely on the gravity of the alleged crime.
6.12.2007 9:13pm
Steve H (mail):
Prof. Kerr, I'm not sure that the focus on what the person is supposedly "suspected" of is really the best way to go about this.

At the end of the day, my interest in the al-Masri case is not about al-Masri, it's about me (and my family, friends, etc.). I don't want the government to have the power to imprison ME at will. Therefore, I think that an unreviewable accusation by the President should not be enough to justify the indefinite detention of citizens captured in the US.

Remember, we can never really know what the government actually "suspects." All we can know is what the government is willing to say about someone. And because the government has complete discretion regarding what accusations it wishes to make, I don't think it is appropriate to have a detainee's rights depend on those accusations.

So the proper continuum, for me, cannot be based on what the government accuses the person of doing, but rather on who the person is and where he was arrested. For example, a US citizen arrested in the US has the highest protections -- Article III courts, trial by jury, presumption of innocence. A citizen of a country at war with the US, caught on a battlefield, has the lowest level of protections. Everything else is somewhere in between.
6.12.2007 9:15pm
George Weiss (mail):
scote (mail):
There is a fundamental problem with this entire thread, which that the accusation is presumed to be true.

It should not be the case that one's rights diminish inversely with the gravity of the accusation, nor that the mere accusation of being a foreign terrorist should bypass the Bill of Rights. That is why we must treat suspects as such and the government must not have carte blanche to hold suspects indefinitely solely on the gravity of the alleged crime.


hey..not the entire thread thank you...
6.12.2007 9:15pm
Steve H (mail):
Okay, I see that while writing that post (and dealing with my job), about half a dozen people said basically the same thing, but more succinctly.
6.12.2007 9:17pm
ATRGeek:
Orin,

I think your question about Saddam Hussein is quite helpful. No, we didn't go to war with Hussein. Rather, we went to war with Iraq.

In my view, the idea of being at war with an individual person is absurd (in anything but a metaphorical sense). Again, I think this all points out the fundamental problem with viewing this as a continuum: nations go to war, not individual people. Conversely, people commit crimes, not nations.
6.12.2007 9:17pm
Justin (mail):
I'm too tired to write a long response, and I don't think this is going to be that useful for discussion purposes, but (and I know Orin disagrees) I think that actual statements in the text of (plurality) Hamdi itself draw pretty clear lines as to what the distinction in here, and regardless of where the grey area is, the plurality opinion of Hamdi says this is to the "crime" portion of that.
6.12.2007 9:18pm
Anderson (mail) (www):
This is a much more interesting problem than I have time for tonight, but here's one question about the hypo:

admitted Al Qaeda terrorists who entered the U.S. to launch an attack but who can't be charged criminally

How do we know this? If they're "admittedly" here "to launch an attack," aren't they chargeable with conspiracy? Can't we pass a law if there's not one?

And if we *don't* know this ... then maybe they're innocent?
6.12.2007 9:20pm
Just an Observer:
Orin,

1) I can see how the Hamdi plurality defined part of a continuum, but only by defining a single new point restricted to a relatively narrow set of facts. While I understand your policy preference for such a continuum, I think it would take more top-level court decisions to flesh out such a framework, in addition to process details filled in by lower courts.

2) If we are dealing with a continuum, where are the bright lines to instruct the executive between major court cases that take years to litigate -- even if we assume a president who acts with more good faith and self-restraint than we are used to lately?

3) You and others might be interesting in reading this recent piece by Benjamin Wittes at the Hoover Institution, if only because he is trying to wrestle with the same war-to-crime continuum you are. I don't necessarily vouch for all his conclusions or recommendations -- which include a proposal for Congress to makes some rules defining new roles for the courts -- but the article is thought-provoking.

4) Perhaps it is just your Socratic bent, but I note that you are more disposed to pose questions to others than to answer them yourself :-)
6.12.2007 9:20pm
OrinKerr:
ATRGeek,

Sorry, I meant Iraq; thus, to make the equivalent, we didn't go to war with UBL. As for your dichotomy, I think you have a "Soylent Green" problem; "Nations Are Made Out of People!!!! People!!!!"
6.12.2007 9:21pm
e:
Is it possible that some of us have difficulty seeing the grey area because we have little recent history of war at home or foreign influenced terrorism? I'm guessing Poles don't have that problem.
6.12.2007 9:22pm
ATRGeek:
If al-Marri can be an invasion, why wasn't Milligan a rebellion?

It is becoming clear that part of the problem here is a lack of seriousness about the term "war", and related terms like "invasion" and even "combatant". And if Milligan stands for anything, it stands for the proposition that these terms should be interpreted narrowly.
6.12.2007 9:23pm
OrinKerr:
JaO,

Strong points, as always. I agree with you that lack of clarity ex ante is the major practical problem with O'Connor's approach in Hamdi. I suspect O'Connor wanted to avoid bright lines and have the courts figure out the rules cautiously step-by-step as needed; she wasn't much one for ex ante clarity, as you know. Oh, and I'd printed out Witee's piece when it came out; I hadn't read it yet, but I will. As for your final comment, why do you say that? ;-)
6.12.2007 9:25pm
George Weiss (mail):
Just an Observer:
Orin,

1) I can see how the Hamdi plurality defined part of a continuum, but only by defining a single new point restricted to a relatively narrow set of facts. While I understand your policy preference for such a continuum, I think it would take more top-level court decisions to flesh out such a framework, in addition to process details filled in by lower courts.

2) If we are dealing with a continuum, where are the bright lines to instruct the executive between major court cases that take years to litigate -- even if we assume a president who acts with more good faith and self-restraint than we are used to lately?

3) You and others might be interesting in reading this recent piece by Benjamin Wittes at the Hoover Institution, if only because he is trying to wrestle with the same war-to-crime continuum you are. I don't necessarily vouch for all his conclusions or recommendations -- which include a proposal for Congress to makes some rules defining new roles for the courts -- but the article is thought-provoking.

4) Perhaps it is just your Socratic bent, but I note that you are more disposed to pose questions to others than to answer them yourself :-)



except for 4 i agree completly...(hes really busy you gotta understand...hes preparing senate testismony and hes a low prof..give him a brek.)

also with reagrd to 1...i would just point out again as other have that the continum must be based on place of seizure and person's icitzinship..if the nature of the crime is considerd..only to move DOWN the ladder toward due process....not up..because that would assume the allegations wer ture before decding hat process hes due (ive said this before and so ha ve others)
6.12.2007 9:28pm
ATRGeek:
Orin,

First, I was being imprecise: I should have said "states" not "nations", go to war.

Anyway, I think it is wrong to imply that a state is just a big association of people (I guess you are going for another continuum here). For an association to be a state requires it to have a number of specific characteristics, most notably effective sovereignty over a geographic area.
6.12.2007 9:34pm
whackjobbbb:
Kill 'em all... let God sort 'em out!
6.12.2007 9:38pm
Shelby (mail):
ATRGeek/Adopca:

At what point does the arrival of attackers on US soil, seeking (however fruitlessly) to damage or destroy the US, become an "invasion"? In the conception of the Constitution's ratifiers, it seems certain that the arrival of a land army or a fleet of ships would suffice; I don't know whether a lone warship or a company of skirmishers would. However, given the vastly increased capacity for destruction that individuals and small groups now have, that conception has become irrelevant.

If Afghanistan had sent the 9/11 hijackers, is there any legal reason that it couldn't have been considered an invasion? What if they sent 100 times as many terrorists? Or the same number, with a nuclear weapon capable of inflicting 100 times the damage?

I'm not certain that such attacks SHOULD be treated as an invasion, but I see know reason why they CAN'T be.
6.12.2007 9:43pm
Richard Aubrey (mail):
OrinKerr, et al.

The republican who commits terrorist acts for the cause of the republican party is committing them against whom? The nation or a DNC office?
Graffit is not a terror offense.
But let's refine it a bit. If it's a matter of violence against the US. Graffiti is a crime. Blowing up a bunch of civilians is war. Now, let's presume a democrat decided that blowing up a bunch of civilians and, say, blaming it on republicans, or, if they're gay, trying to raise awareness of homophobia, is caught at it. He's killing promiscuously, or almost so in the second case. That's terror--violence to affect the political process-- and so we call it war, even if the guy is a citizen.
Eric Rudolph, then, would be a war person, whatever the title turns out to be, because he killed to intimidate the general public.
That will bring into the war category certain acts now considered crimes.
6.12.2007 9:53pm
Bruce Wilder (www):
There was no continuum between "war" and "crime" before 9/11. There was a dichotomy.

Bush created your continuum, by breaking the dichotomy, with the creation of novel categories. He created a category of illegal combatants, outside of both "war" and "crime", with the consequence that are now cases of war, where the law of war is followed and cases where it is not respected with much consistency; and there are cases of crime, where the laws of crime are followed, and cases where the laws of crime are only kind of/sort of followed. And, there are cases of neither crime nor war, where no law at all is followed. That's your continuum.

Your continuum is just a rationalization for an overthrow of the rule of law, by authoritarians, who refuse to face legal liability for their own crimes.

And, you want civility and respect? Good luck with that.

[OK Comments: Bruce, I am puzzled by your comment. The Bush Adminitration has not introduced the continuum; they endorse the dichotomy, just as you do. The continuum is how I see it as a matter of policy, and also the approach of Justice O'Connor's plurality opinion (joined by Breyer, Kennedy, and Rehnquist) as a matter of constitutional law. In any event, I am sorry to learn that I do not deserve to be treated with civility and respect. I hope other readers feel differently.]
6.12.2007 9:54pm
Bob from Ohio (mail):
Only #5 is a crime and a crime only.

Only when US citizens are involved are there any close questions. The non-citizen hypos are all war.

If we have proof beyond a reasonable doubt, then try the citizens in regular courts. No close question.

The tricky problem is when we don't have such proof, but do have lesser proof. Do we let these people go to try to kill again? Or hold them indefinately without trial but with some minimal judicial safeguards like those in the MCA?

Many would say it is not a close question, that the Constitution says try them or let them go. I think it is possible to disagree about a flat rule without favoring tyranny.
6.12.2007 10:00pm
ATRGeek:
Shelby,

At least according to Milligan, the basic idea seems to be that whatever is going on in the relevant part of the United States has to be so serious that the ordinary courts cannot be safely opened, and there is no alternative to the military taking over law enforcement.
6.12.2007 10:10pm
ATRGeek:
For what it is worth, I don't think Orin is intentionally serving the purposes of a fundamentally lawless Administration.

But that doesn't mean he is not unintentionally serving their purposes.
6.12.2007 10:13pm
OrinKerr:
For what it is worth, I don't think Orin is intentionally serving the purposes of a fundamentally lawless Administration. But that doesn't mean he is not unintentionally serving their purposes.

ATRGeek, I covered this before back in March:
I would like to clear up something: Of course we are all political hacks! Our secret trick is that we alternate which side to spin: sometimes we are political hacks for the right, and sometimes we are political hacks for the left. Naive readers occassionally mistake this for principle, but I trust the more sophisticated see it as the randomized hackery it truly is.
Seriously, though, I'm just calling 'em as I see 'em. I realize that this will be upsetting to some.
6.12.2007 10:21pm
David Walser:
The essence of the problem is that this conflict does not neatly fall into the categories we've used in the past. Better than half the posters on this thread don't believe we are at war -- because only nations can be at war (or for some other reason). Much of AQ's actions are routinely dealt with by the police in other contexts, why not here (if this is not war)?

Others don't see AQ's actions as criminal in nature -- because AQ's aims are political. Criminals, as a rule, do not carry out their crimes with the goal of influencing national policy. A criminal's primary goal is personal enrichment. AQ wants the West out of the Mid-East. AQ's goal is of a type that is usually carried out through diplomacy or through war. AQ's goals are warlike and so are their actions, so why shouldn't the military deal with them if its not a police matter?

In the end, this has to be a military matter because the police cannot deal with this. We tried the "it's a criminal matter" approach in the decades following the bombing of the Marine's barracks in Beirut. The result, dozens of terrorist attacks, culminating with those on 9/11. Promising to "bring those responsible to justice" just doesn't provide much deterrence when a) it takes years to track down those responsible (assuming you can track them down) and b) those responsible are willing to die for their cause.

AQ is not a nation or a state. The terrorists are multi-national -- bigger than any state's territory. Their goal is to create a Caliphate (a state) that stretches from Europe to Indonesia. They use guerrilla war tactics because they cannot compete in open battle with the West's military. Like guerrillas, they seek to blend into the civilian population to better accomplish their military goals. Like guerrillas, terrorists need to be dealt with by the military because police methods -- designed to catch someone after a crime has been committed -- are woefully inadequate. The military is far better able to prevent attacks from happening.
6.12.2007 10:23pm
Latinist:
I agree with Mark Field that classifying hostile people as soldiers or criminals based on their opinions doesn't make much sense: a bank robber who claimed to be operating as a soldier of the Holy Roman Empire would be tried as an ordinary criminal, and a hired thug who started working for a Nazi spy organization during WWII could probably be treated as an enemy soldier (even if his motives were purely venal, and he had no loyalty to the Nazis or Germany; maybe even if he didn't know the identities of his employers(?)).

I think the relevant question is, rather, what resources the hostile person has at his or her disposal. A hostile person with the backing of an enemy government (or maybe even a large, international organization like Al-Qaeda) is more and differently dangerous than one just acting on his own; so we can't have as many restrictions on the tools we use in the former case.

There are probably some problems with this criterion -- I would worry about the government trying to classify as enemy combatants members of the Mafia or the Crips, or petty criminals whose crime is, unknown to them, indirectly profiting or profiting from the activities of an enemy government; on the other hand, Al-Qaeda members who kept their connections remote enough might be able to qualify as ordinary criminals -- but I think it makes a lot more sense than classifying people as criminals and soldiers based on their own (unknowable, irrelevant, and often crazy) beliefs.
6.12.2007 10:23pm
Dan Simon (mail) (www):
As a general matter, however, war is about self-protection: we try to disable the enemy from attacking us, and we take whatever measures are necessary to do that.

My understanding of this statement, Orin, is that you envision a war as taking place between an "us" and a "them", and that "our" obligation to afford "them" the protections the Constitution (as embodied in the current judicial Catechism) affords "us", is thereby greatly reduced. The continuum between "war" and "crime" that you describe can thus be viewed as a continuum of "us-ness", with the "crime" end referring to dealing with wrongdoing by "us", and the "war" end referring to wrongdoing by "them". Apparently, you feel that the majority in the Al-Marri case drew the line between "us" and "them" in a "bizarre" place. Personally, I find this rather dry matter of line-drawing to be difficult to get worked up about, although I grant that law professors can be forgiven for feeling differently.

But most of the discussion here has in fact revolved around a completely different issue that you inadvertently raised with your original hypothetical. You see, had you described a group of members of comedian Chris Langham's fictional "moderate terrorist group", whose plans were to plant a fish soup aboard an airliner and phone in a threat that if it wasn't eaten within twenty-four hours it would go off, then there would have been little reason to complain about the prospect of such relatively harmless people being set free under a Fourth Amendment technicality. Instead, though, you described them as planning to set off a "dirty bomb" in a major city--thereby accidentally highlighting the ultimate absurdity of the consequences mandated by the exclusionary rule.

In short, what's truly "bizarre" about your hypothetical--to anyone who can see the forest for the trees--wasn't anything about the niceties of the "us"-"them" continuum, but rather its implication about the consequences of the exclusionary rule--whether applied in favor of (a mass-murdering member of) "them" or (of) us. And what's really bizarre, to my mind, is the solid majority of commenters here who found those consequences perfectly congenial, even laudable. Apparently, the US Constitution really is a suicide pact.
6.12.2007 10:29pm
ATRGeek:
Orin,

Again, I am not saying you are a "hack". But like all of us, I think you can be manipulated, and in this case I think you have been.

But in any event, I don't think the antidote is to chastise you, so I will stop here.
6.12.2007 10:30pm
David Walser:
Bush created your continuum, by breaking the dichotomy, with the creation of novel categories. He created a category of illegal combatants.... - Bruce Wilder
The Bush Administration did not create the category of illegal combatants. That category is at least as old as the Geneva Conventions. While the conventions had many purposes, one of the chief among them was to reduce unnecessary harm to civilians. One of the methods to do this was to offer combatants an incentive to follow the rules of war: Wear a uniform, avoid hiding behind civilians or operating out of civilian areas, and we will treat you decently if you are captured. If you don't do these things, you are an "unlawful combatant" and you have no promise of decent treatment upon capture.
6.12.2007 10:35pm
c.f.w. (mail):
1. The fact that it takes so many paragraphs to lay out the OK view should tell OK he may not be on the right track here - Occam's Razor does not favor the current OK approach.

2. Some historical perspective might be helpful - what is different from the detainment of Japanese descent folks per Roosevelt's order, which we all look back at as a black mark? Al Marri has been detained say twice as long with no trial of any sort?

3. Further back, how is handling these anarchists much different from handling the anarchists who killed Presidents et al around 1900? Criminal procedures were used then.

4. Back further, how does this differ from alien and sedition acts under Adams?

5. Back further, how does this differ from arbitrary preventative detention of enemies of the state in England in 1400 to 1700?

6. Having done military service as a lawyer and also done work as a civilian lawyer in death penalty cases, I think OK genuflects too much here to supposed war (and law of war) experts. He is too modest. If called upon to use the tools now available to criminal prosecutors, he (and/or his ilk) could lead well in protecting US citizens from harm from terrorists. Leading with flocks of lawyers, supported by the FBI, police forces, the CIA, and the Pentagon as needed makes more sense than having folks like OK acting like shrinking violets.

7. The war model works if there is a party on the other side to sign a treaty with. The US is not going to ever sign a treaty with AQ or the Mafia or the Taliban or Hamas so why pretend a war model is acceptable? If the goal is not a treaty, but detention or deterrence (or killing in self defense, defense of other humans, etc.), that is for prosecutors (like Guiliani in the 80's and 90's) and not so much divisions of troops (except as needed to back up the law enforcers).
6.12.2007 10:37pm
ATRGeek:
David Walser,

It is not apparent to me that our military is much better at dealing with terrorists than our police.

Primarily, our military is extraordinarily good at defeating opposing conventional armed forces. In other words, you do not want to be in a ship, tank, or warplane when the US military is tasked to destroy that ship, tank, or warplane. But as we are unfortunately demonstrating in Iraq, our military is not necessarily all that good at dealing with terrorists.

This, of course, raises the strong possibility that neither our police nor our military can really be looked to for a solution to the problem of terrorism. At most, they can just help deal with terrorism within the limits of what they are capable of doing.
6.12.2007 10:40pm
Steve2:
Going to disagree with you, Bob. I'd say 2, 5, 6, 8, 9, and 10 are all clearly criminal matters only, and only 3 is clearly a war matter (although I feel guilty saying that since the hypothetical was "suspected" German soldier, not "confirmed" German soldier). It's with 1, 4, and 7 where I see a set of circumstances that make it hard for me to call... and with 7, then there's the question of does that differ from an Iraqi native suspected of something.

I'll admit, I'm... skeptical... of allowing war to apply to entities besides nation-states. And, more than that, I think there ought to be a significant distinction between "suspected" and "confirmed".
6.12.2007 10:48pm
David Walser:
ATRGeek,

I don't think Iraq is a good example of our military's inability to deal with terrorists. I think it's a good example of what happens when a bunch of well-meaning politicians, diplomats, lawyers, and activists tie the military's hands.
6.12.2007 10:50pm
Anon. Lib.:
I just want to echo how frustrating it is to see OK contort himself, beginning, especially, with the strained and unrealistic hypo, in support of a regime that is committing real and horrific human rights abuses and which claims license to commit more. Abuses which are not "costs" of preventing terrorist plots but are, at best, gratuitous and unnecessary, and, at worst, inspiration for future terrorists.
6.12.2007 10:57pm
ATRGeek:
David Wasler,

Well, that is basically an untestable proposition. But for what it is worth, General Petraeus, among many others, thinks differently.
6.12.2007 10:58pm
ReaderY:
I believe the classical approach of (a) association with the enemy, (b) acting under the enemy's direction and control (c) for a military purpose (read very broadly, once the other two criteria are met) provides a workable way to distinguish between military and non-military activities.

Under this test, merely giving money to a front charity is not military action (although it could be treason if done knowingly). Similarly, drug trafficing and other internal crimes typically don't involves any association with enemy agents or acting under the enemy's direction and control.
6.12.2007 11:29pm
ATRGeek:
ReaderY,

I think Milligan strongly suggests that to be a combatant, you can't just be associated with the enemy for a military purpose. Rather, you actually have to be part of the armed forces of the enemy.
6.12.2007 11:32pm
Mark Bahner (www):

The first and most important is that members of a terrorist cell see themselves at war; they see themselves as soldiers in a holy war against the United States, and are acting accordingly. When a group sees themselves as soldiers at war trying to kill you, it seems fair that you should want to return the favor.


David Berkowitz saw himself as simply following his dog Sam's orders to kill people. Does that mean we should have shot his dog? ;-)

(Sorry, couldn't resist that.)

Seriously, though, how is it relevant how criminals see themselves? If Al Qaeda people saw themselves as mass-murdering totalitarian scumbags, does that mean that we should treat them accordingly?

How many murdering scumbags see themselves as murdering scumbags? And why should we care what they think?

For example, John Allen Muhammad (the Virginia sniper murderer) apparently saw himself as some sort of military mastermind. From Wikipedia:


The third phase was to extort several million dollars from the United States government. This money would be used to finance a larger plan. The plan was to travel north in to Canada. Along the way they would stop in YMCAs and orphanages recruiting other impressionable young boys with no parents or guidance. John Allen Muhammad thought he could act as their father figure as he did with Lee Boyd Malvo. Once he recruited a large number of young boys and made his way up to Canada, he would begin their training. Malvo described how John Allen Muhammad intended to train all these boys with weapons and stealth, as he had been taught. Finally, after their training was complete, John Allen Muhammad would send them out across the United States to carry out mass shootings in many different cities, just as he had done in Washington, DC and Baltimore, MD. These attacks would be coordinated, and were intended to send the country into chaos.


Does that mean the U.S. government should have been "fair" and treated him as a military leader?
6.12.2007 11:36pm
bluecollarguy:
But as we are unfortunately demonstrating in Iraq, our military is not necessarily all that good at dealing with terrorists.

Only if you consider killing them a poor outcome.
6.12.2007 11:36pm
Andrew J. Lazarus (mail):

The Bush Administration did not create the category of illegal combatants.

Is there any pre-Bush example of someone being classified as an illegal combatant who was neither (a) captured in a battlefield or war zone nor (b) an admitted member of enemy armed forces? AFAIK, the Quirin defendants did not deny membership in the German armed forces, so they do not provide an example.

I suggest that there is no such example, and that there is no pre-Bush example of this mix-and-match status where al-Marri is neither a lawful POW, nor even an alleged spy or saboteur (who could be tried by military tribunal and executed), nor a civilian in civilian court.

It is not an accident that lettres de cachet, which is what Bush issues to detain persons like al-Marri, is a French phrase: the idea is completely alien to Anglo-American history.
Blackstone wrote, ". . . if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper, (as in France it is daily practiced by the crown,) there would soon be an end of all other rights and immunities." I Commentaries (4th ed. Cooley) *135.
6.12.2007 11:38pm
ReaderY:
1. U.S. citizen seized in Afghanistan, suspected of helping the Taliban forces in battle.

Military action is clearly alleged under (a)
2. U.S. citizen suspected of blowing up a federal building as part of a plot to overthrow the U.S. government.

No military action. The Consititution gives Congress authority to use military force to suppress "insurrections", so military force could be used at the scene, but this doesn't apply if there isn't an actual ongoing insurrection.

3. Suspected German soldier seized on the battlefield on D-Day in 1944.

Military action

4. Frenchman seized on the battlefield on D-day in 1944 suspected of helping the Germans.

Military action (in association with the enemy, under direction and control, etc.).\

5. Suspected crack cocaine dealer arrested in New Jersey.

No military action (no association with any enemy)

6. Suspected Al Qaeda terrorist seized in U.S. after entering the U.S. to launch another 9/11.

Military action (Explicit declaration of military force against Al Qaeda makes it an "enemy", not even a borderline case. Any foreign power capable of fielding military force can be an enemy, doesn't have to have a particular organizational structure.)

7. Suspected Al Qaeda terrorist seized in Iraq after entering Iraq to join fight against U.S.

Also military action, also not borderline.

8. U.S. citizen who lives in Detroit and suspected to be a supporter of Al Qaeda; evidence suggests he sent $10,000 to a "charity" that is really a fun to help Al Qaeda launch
more attacks in United States.

No military action unless he acted in association with the enemy and under the enemy's direction and control, and even if he did, action may not be sufficiently military in character. (Under Quirin enemy belligerence requires "war-like acts" or preparation for same.)

9. Egyptian citizen in the U.S. on a tourist visa seized in the U.S. on suspicion of planning attacks against a U.S. military base.

Requires association and acting under direction and control of an identified enemy to be military action.

10. U.S. soldier in World War II suspected of being a double agent for the Germans.

Military action.
6.12.2007 11:39pm
ReaderY:
ATRGeek:

But membership in the enemy's armed forces doesn't require specific formalities. Quirin requires only acting under the enemy's direction and control for military purposes
6.12.2007 11:42pm
ATRGeek:
bluecollarguy,

Do you have a reason to believe we are killing them faster than they are adding new members?
6.12.2007 11:44pm
ATRGeek:
ReaderY,

This issue wasn't actually litigated in Quirin. But to the extent you are relying on the facts in Quirin, the petitioners travelled to the United States in a German submarine, and landed wearing the insignia of the German Marine Infantry.
6.12.2007 11:50pm
Mark Field (mail):

Criminals, as a rule, do not carry out their crimes with the goal of influencing national policy.


Except that a great many crimes are expressly political. I gave some examples above. cfw hinted at others (Leon Czolgosz, John Fries). I could come up with a great many more (Haymarket, McVeigh). That can't be the deciding feature.
6.12.2007 11:51pm
justanotherguy (mail):
The first question that has to be answered is whether or not the nation is at war. Is the War on terrorism with a multi-national terrorist threat a war or a mere large criminal conspiracy like organized crime of the KKK?

The answer to that question determines the rest. If at war, the obvious damage to security from the 4th circuit and the issues of revelation of intelligence in prosecutions... (I've always assumed the hotel clerk saw something was the sanitized version of our intelligence program gave us the answer and we don't want to admit it so we make up a hotel clerk!)

If this is simply an overreaction to a criminal conspiracy like McVeigh, then we get a different answer.

Since the country seems so divided on this answer even if Congress wasn't was few short years ago (they did pass equivalent resolutions of war), then we will not have consensus.
6.12.2007 11:58pm
Common Sense (mail):
ATRGeek,

All of your arguments are tremendously weak.
6.12.2007 11:59pm
ATRGeek:
Just a little bit from Quirin:

"Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war."

In light of Milligan, I do not think one can drop the need to associate oneself specifically with "the military arm" of the enemy, and to be operating under the direction of that military arm.
6.13.2007 12:01am
ATRGeek:
Common Sense,

Oh my god, you are right. I retract everything I have ever argued.
6.13.2007 12:03am
bluecollarguy:
Do you have a reason to believe we are killing them faster than they are adding new members?

You're joking I take it? The Madrassas turn out terrorists on a daily basis.

That has nothing to do with the claim you made. That claim was wrong. Soldiers and Marines in Iraq and Afghanistan kill and capture Al Qaeda and Taliban at very high rates. Anbar and Diyala are turning against Al Qaeda while the Sheiks and the tribes are turning toward US fighters. Those are the facts which refute your claim.

More to the point, the work being done in Iraq and Afghanistan by American fighters denies terrorists a state from which to launch attacks and keeps them safe from being declared combatants if they come to America as legal alien terrorists according to the recent 4th Circuit ruling.

There's a silver lining in every trash can I suppose.
6.13.2007 12:12am
ATRGeek:
bluecollarguy,

I believe you just made my point for me. Al Qaeda was driven out of Anbar when the Iraqis decided to drive them out, not when the US military finished killing them all.

And that is quite obviously how we will achieve real success in dealing with terrorism: not by trying to use our military to kill them all, but by getting people around the world to turn on them.
6.13.2007 12:23am
Thomas_Holsinger:
Mr. Aubrey,

Extortion to benefit a third party, as opposed to the perpetrator, is a crime. United States v. Margiotta, 688 Fed.2d 108 (2nd Cir. 1988).
6.13.2007 12:29am
Mark Field (mail):
Ok, I have the perfect example; I'm annoyed I didn't think of it before: Julius and Ethel Rosenberg.

IMO, they did something much worse than Prof. Kerr's hypothetical terrorists. They didn't try to set off a bomb, they gave the knowledge of how to build bombs to a nation with (a) resources far beyond those AQ could ever hope to have, such that it could use the stolen knowledge to make many bombs and use them to threaten us; and (b) a leader even more batshit insane than OBL.

To the best of my knowledge, nobody even suggested that we detain them indefinitely or try them by military commission. We gave them, instead, the same due process protections (mostly, anyway; it wasn't perfect) we gave ordinary criminal defendants at that time. And the world may have become a very dangerous place thanks to the Rosenbergs, but we didn't trash the Constitution just because of them.
6.13.2007 12:31am
Just an Observer:
In conceptualizing what factors we, in the abstract, might consider important in defining a model, we have the luxury of an omniscient view. Zathras above suggested several plausible dimensions beyond just war and crime, to which Waldensian added the important element of exigency. Such multidimensional models can be described mathematically, but not visualized. (Just trying makes my head itch on the inside.)

But the Fourth Circuit does not have such an intellectual luxury. It has to work with the cases that control it -- Hamdi and, FWIW, Padilla. That explains the majority's emphasis on distinguishing Taliban versus Al Qaeda, and distant battlefields versus domestic venues. (Of the two, I find the latter much more compelling. Whether our society is properly analogous to a "battlefield" in the context of the AUMF is the question that most begs to be answered by the courts.)

As I mentioned above, I think Hamdi did not define even a two-dimensional continuum, but a single rough data point. If the Padilla case had reached the Supreme Court, it likely would have defined another. Perhaps the Al-Marri case eventually will provide one, too.

If a workable legal model emerges from the Supreme Court, it would take some genius to create it. Who would be the latter-day Robert Jackson that did so? Or is it futile to hope? Speaking of Jackson, part of his beautifully crafted lesson in the Youngstown concurrence is that Congress can define the rules, but only if it steps up and asserts itself. A solution generated by both political branches is, theoretically, something that would appeal to justices across the spectrum. If there is a unifying principle that they all agree on, it is the Youngstown framework.

So maybe we don't need a new model defined by the Supreme Court, but one hammered out on the other side of First Street. The legislative status quo is hardly stable: The MCA barely passed a divided Congress before the last election. The current Congress would never pass it as-is today, but lacks 60 or 67 Senate votes to undo it. Meanwhile, it is impossible not to notice that the 2008 campaign is already upon us. A political determination may have to await the outcome of that event.
6.13.2007 12:35am
Thomas_Holsinger:
David Walser,

AFAIK, the concept of unlawful combatants goes back to the Romans.
6.13.2007 12:39am
Bart (mail):
Professor Kerr:

Thank you for your thoughtful post. Please allow me to suggest a new perspective on how we should be looking at this question and then a methodology to answer the question.

We are losing sight of the purpose of prisoner of war status under the law of war. Prisoner of war status is protective, not punitive. It is meant to simultaneously protect the combatant from being treated like a common criminal while protecting our troops and civilians from the combatant returning to a action. Prisoner of war status is usually something combatants seek, rather than avoid. Therefore, perhaps the question should be whether the subject would normally be thought to qualify as a combatant with the intent to protect him or her from being treated as a common criminal subject to execution.

With this change in perspective, let us return to the question of how to determine whether a prisoner is a military combatant or a civilian criminal. Judge Motz was correct to bifurcate the determinations of whether the prisoner is an enemy combatant and whether he is acting lawfully as a combatant. I would suggest that we are allowing the second determination of lawfulness to confuse the predicate determination of whether the prisoner is a combatant or a civilian criminal. To remove this distractor, I propose we simply assume that the prisoner and the organization to which he belongs are complying with the laws of war and then determine whether the Geneva Conventions would extend POW rights to the prisoner.

Let us use al Marri as an example. Assume that al Qaeda was acting within the limits of international law and al Marri was in uniform. Would al Marri then be considered an enemy combatant eligible for the GC POW protections or would be be considered a common criminal subject to execution? Assuming that al Qaeda and al Marri are acting lawfully, I would suggest that al Qaeda would fall under the category of non governmental militias under Article 4(A)(2) and, as a member or al Qaeda, al Marri would qualify as a combatant with POW protections under this provision of the GC rather than a common criminal.

Once you have made the determination of whether al Marri is a combatant, then and only then should you concern yourself with whether al Marri is acting lawfully or unlawfully as a combatant.

I would welcome any comments as to my suggested approach.
6.13.2007 12:40am
bluecollarguy:
I believe you just made my point for me. Al Qaeda was driven out of Anbar when the Iraqis decided to drive them out, not when the US military finished killing them all.

And that is quite obviously how we will achieve real success in dealing with terrorism: not by trying to use our military to kill them all, but by getting people around the world to turn on them.


Is the creation of strawdogs a habit or an affliction?

I don't believe I've seen any rational person ever argue that it is possible to "kill them all". There are the Duke Nukem's and the occasional over zealous Marine or Soldier in the throes of combat who might utter those words but I haven't made such a statement.

Soldiers and Marines kill and capture Al Qaeda and Taliban every day for several reasons not the least of which is to deny them a state from which to gather resources and direct them our way. It's a tough job and one of the benefits of that tough work is that some Iraqi and Afghani citizens have come to despise Al Qaeda and the Taliban as much as many of us Americans do. That is a good thing.

Could you tell me when Mohammad Atta and his cohorts crossed the line from legal/illegal alien terrorists worthy of due process to enemy combatants who would become legitimate targets of US Military assets on American soil? Or perhaps they never did? Would the executive have broken laws if US Air Force pilots had been ordered to shoot down the airplanes doubling as guided missiles?

Also, could you tell me why Manhattan was not a battlefield on 9/11? It sure looked and smelled like a battlefield.
6.13.2007 12:43am
NatSecLawGuy:
Maybe this is the ignorance of a younger student of the law, but while admiring the thoughtful analysis I struggle with the premise. The author seems to superficially create differences between the goals of the criminal process and the goals of the war process. For example, I don't agree that the goal of war fighting is purely incapacitation, rather I see a larger role of deterrence in that we seek to disable that state (or person as is often the case in war fighting today) and also deter others from raising force against us by the swift compulsory disabling of the enemy. Thus, muddying the waters a bit more in finding those bright line differences (cognizant at the same time that the author used the term "generally").

In a larger context though, I struggle even ensuing in the conversation of what is war and what is crime cause of the linch pin paradox I find myself getting caught on: the basic confusion of the term "war crime." Here this post seeks to create lines between what is war and what is crime, but yet there is fairly well accepted doctrine that constitutes a crime can be committed while engaged in war. How does one go about parsing out the differences here?

Thus, I don't have any answer and respect the attempt to create one by the author, but must acknowledge that the premise seems limited artificially.
6.13.2007 12:48am
ATRGeek:
Bart,

I think bifurcating the issue is appropriate, but your approach becomes problematic when we start imagining different facts in al-Marri's case. When originally detained, al-Marri was a student living in Peoria, Illinois. It is hard to imagine him doing that while wearing an al Qaeda uniform.

Generally, I think the fundamental problem is that al-Marri was in fact a civilian, as the Fourth Circuit held. He might also have been a "sleeper agent" of al Qaeda, but that does not somehow mean he was not a civilian.

And I agree that means he is not entitled to POW status, which could be an unfavorable determination for al-Marri if it turns out that he is subject to criminal liability. But that, of course, remains to be seen.
6.13.2007 12:52am
Mark Field (mail):

Also, could you tell me why Manhattan was not a battlefield on 9/11? It sure looked and smelled like a battlefield.


Did you think Oklahoma City was?
6.13.2007 1:00am
Taxpayer (mail):
No one has mentioned the need to protect our intelligence methods and sources. Will this not cause the government to favor military procedures, and accused persons to favor civilian courts?
6.13.2007 1:05am
ATRGeek:
bluecollarguy,

In all seriousness, I have no idea how you are disagreeing with what I originally wrote ("This, of course, raises the strong possibility that neither our police nor our military can really be looked to for a solution to the problem of terrorism. At most, they can just help deal with terrorism within the limits of what they are capable of doing."). If it helps, I agree that denying terrorists state sponsorship and protection is one of the things the military can do.

As for the 9/11 hijackers: our law contains standard rules for the use of deadly force. Certainly once the hijackers took control of the planes, the use of deadly force would have been lawful. That, of course, has nothing to do with their legal status--even if they were "merely" criminals, they would be subject to the same use of deadly force.

Manhattan was not a battlefield on 9/11 because no battle took place there. Of course, an act of terrible violence occurred in Manhattan that day--but it wasn't a battle.
6.13.2007 1:06am
ATRGeek:
Taxpayer,

Perhaps, but keep in mind that courts martial are subject to their own procedures and rules of evidence, and they also provide for an adversarial process with discovery.
6.13.2007 1:09am
bluecollarguy:
Did you think Oklahoma City was?

Certainly.

Waco?
6.13.2007 1:10am
Just an Observer:
Bart,

Your idea would make sense only if we actually treated Al Qaeda detainees as POWs, which we refuse to do. Such detainees cannot be expected to pay the price of combatant status (detention without due process) without the benefits of POW protections.
6.13.2007 1:10am
Just an Observer:
Bart,

And, obviously, the other problem is that Al-Marri denies being a combatant. (I also deny being an enemy combatant, for the record, and I do not think it is okay for the government unilaterally to declare me to be a POW as if I did wear a uniform and send me to a camp.)

There was less doubt about the facts in the case of Hamdi, for examle, because he was captured under arms on a battlefield. My memory could be wrong, but I do not think he disputed that fact. In any event, the Hamdi court said his combatant status deserved some neutral review.
6.13.2007 1:26am
ReaderY:
ATRGeek:

I agree that association with the "military arm" of the enemy is required. We are clearly both using the same passage from Quirin but interpreting it in different ways. My interpretation is that the Quirin criteria do not require the enemy to observe particular corporate or other organizational formalities: a "military" force is a practical question, not a legal one, and further a practical question to which courts owe substantial deference to Congress and its war powers.

By opting to use a military approach against Al Qaeda, Congress implicitly decided that it represented an enemy in a military sense, and that its forces were military forces. Since the organization ran dozens of combat and sabatoge training camps and fielded thousands of fighters in Afghanistan, in addition to running 9/11 as an essentially paramilitary operation, regarding it as a military power requiring a military response was not an unreasonable call and well within the deference courts owe Congress on such fundamentally political questions. Accordingly, acts such as attending a weapons training camp in Afghanistan are clearly evidence of military association. No doubt there are gray areas, but by running training camps, organizing in cells, having a chain of command, etc., Al Qaeda is sufficiently like a traditional military or paramilitary organization to make "military arm" reasonably applicable to its activities.
6.13.2007 1:33am
Anderson (mail) (www):
Very interesting thread; I continue to fear the hypo begs some questions.

Sad to see OK impugned; he is doing what a good law prof does, pushing on the law to see where/if it gives. Those (like me) dubious of the "peace/war/other" continuum are lucky to have someone smart arguing in good faith for it, to test whether we're right.

Concur w/ Apodaca that Milligan provides a strong answer to the problem; Quirin ("not this Court's finest hour" - A. Scalia) by contrast was decided *during* the war, in haste, &is a very weakly-reasoned decision IMHO.
6.13.2007 1:43am
ReaderY:
In my view Congress's explicit military force resolution against Al Qaeda, combined with Al Qaeda's essentially military structure and activities, make calls about alleged association with Al Qaeda fit within a reasonable stretch of longstanding categories and criteria, and enable courts to distinguish between military conduct on behalf of a Congressionally-identified enemy on the one hand from simple crime on the other. There is no carte blanche for a President to declare anyone he chooses an enemy.

We no longer requires armies to march in formation to fife-and-drum bands or wear peacock feathers. Al-Qaeda simply represents an evolution in military organization and tactics. The Constitution is not-hide bound. It permits adjusting traditional categories to meet contemporary technological and organizational realities. This applies as much to the definition of a "military arm" as anything else.
6.13.2007 1:44am
Katherine (mail):
You are starting this whole discussion with a presumption of guilt, which is exactly what has led us down the awful road we've been on for five years....The legal standard for putting you in prison should not be based on the severity what the government accuses you of doing. That is asking for abuse. That is not how our Constitution is set up, either: it specifically sets up EXTRA protections for crimes that threaten the nation because the danger of abuse is so great. And I don't need to invent hypotheticals about the dangers of administrative detention.

One of the problems with an ad hoc balancing is not only that it's kind of "made up"; it's that the administration can do its damnedest to keep these cases out of court &prevent the court from applying even an inadequate Matthews test. Meanwhile, prisoners are locked up without any hearing, in seriously abusive conditions, with no court review at all.

I don't think you're a hack. I do think the desire of law professors to discuss made up hypotheticals instead of the actual factual record of six years of these policies is: (1) incredibly destructive; (2) at this point, barely even forgivable.
6.13.2007 1:47am
ATRGeek:
ReaderY,

Al Qaeda obviously did have military forces, at least at the time of the 2001 AUMF. But that does not mean that everyone associated with al Qaeda is part of al Qaeda's military forces.

The 2001 AUMF obviously does not imply otherwise. Indeed, consider our declaration of war between the government of the United States and the government of Germany in WWII. Does that mean everyone associated with the German government was in the armed forces of Germany? Of course not.
6.13.2007 1:47am
ATRGeek:
ReaderY,

But just as a non-state actor like Al Qaeda may have a military arm, so too may it have non-military arms. That is the problem with your analysis (the assumption that Al Qaeda is all military arm, and nothing else).
6.13.2007 1:52am
Dave Hardy (mail) (www):
If it is a war, then you hold the POWs until peace breaks out (or they are exchanged). So if we treat them as military personnel, don't we detain them until, oh, Al Qaeda surrenders? I.e., for life?

If it isn't war, then don't we either shoot them after a drumhead courtmartial, or turn them over to local authorities on charges of homicide, etc.?

I suppose there is some due process rights of a sort involved, namely requiring a determination that they are to be treated as POWs or illegal combatants, making sure they weren't just bystanders. (Obviously this is much simpler in a real war: they wear uniforms and have identification). But if that can be demonstrated, aren't the alternatives basically indefinite detention or a firing squad?
6.13.2007 2:01am
c.f.w. (mail):
"No one has mentioned the need to protect our intelligence methods and sources. Will this not cause the government to favor military procedures, and accused persons to favor civilian courts?"

How much actionable intelligence is involved after 6 years? How much about what Al Marri is accused of came from coercive interrogation?

If all the US has is some confidential informant who thinks he or she cannot appear in court, what makes us think the detention is justified? None of those CIs who shy away from court ever lie or make mistakes.

Everyone assumes they have their phones bugged (or buggable) - transcripts of conversations might have been a shock in WWII, but they are not a shock now.

If there is a case for putting Al Marri in a cage for 6+ years, it should be able to stand up in court.

As a thought experiment, replace Al Marri with John Smith and picture a white, clean cut grad student - your sister's boyfriend (or your sister). Now tell us what counts more - protecting unspecified "methods" and "sources" or properly adjudicating the guilt or innocence of your sister or significant friend. I have no objection to protecting the whistle blower - after he or she testifies and confronts the accused.

These same issues arise in military courts staffed by good US lawyers and judges - like the ones in G'tmo who have put their careers on the line about insisting on findings of unlawful combatant status, and the one who took Hamdan to the USSCT.
6.13.2007 2:10am
Anderson (mail) (www):
I see that Katherine has some reservations about the hypo as well.

And I'm sorry -- I'm trying to be good, but I find the notion that al-Qaeda "represents a military evolution" is just risible. They're a bunch of guys who blow stuff up for Allah.

This romantization of contemptible criminals into, I dunno, SPECTRE, never ceases to amaze me. Whether OBL or KSM fancied themselves "at war" with us, i.e. their intent, interests me only for its psychological import.

Geneva seems relatively clear: if they're not POW's, then they're civilians, and if they commit offenses as civilians, then they're triable under our municipal law, outside the circumstances of a drumhead tribunal on the battlefield.

I am still waiting for someone to explain what is so unworkable about this framework -- why we have to invent new categories, throw out existing precedents, etc.
6.13.2007 2:14am
Shelby (mail):
[Q]uite obviously how we will achieve real success in dealing with terrorism: not by trying to use our military to kill them all, but by getting people around the world to turn on them.

Perhaps it has not occurred to the author tht killing terrorists, and thus demonstrating that they are vulnerable, helps to get "people around the world to turn on them." Fighting physically against them is necessary (though not sufficient) to defeat them. (And I desperately wish we had a government more dedicated to the non-physical aspects of that fight.)

Anderson: If they're fighting outside the laws of war, why do we have to accord them civilian law if we don't want to? Why can't we give them military justice as it applies to illegal combatants?
6.13.2007 2:20am
Dan Simon (mail) (www):
Prisoner of war status is protective, not punitive. It is meant to simultaneously protect the combatant from being treated like a common criminal while protecting our troops and civilians from the combatant returning to a action. Prisoner of war status is usually something combatants seek, rather than avoid.

That was before the Warren Court Revolution. Today, everyone clamors to be declared a common criminal, because the evisceration of the criminal justice system hasn't yet been extended to its military counterpart (although the courts are obviously working overtime these days to rectify that oversight).

As I pointed out before, the elephant in the room is the fact that today's criminal justice system, hobbled as it is by decades worth of fancifully invented "rights", is likely to be powerless to hinder a competent terrorist organization, be it foreign or domestic. Given that state of affairs, any quibbles about the niceties of the combatant-civilian distinction are bound to be (with apologies, Orin) strictly academic.
6.13.2007 2:36am
Erasmus (mail):
Orin, my ignorance of most of the relevant legal materials is keeping me from giving you a precise answer to your normative question. I suspect if I had a better handle on the relevant vocabulary, I could articulate to a better degree the distinctions.

But setting that aside, I believe I've already answered why I think we're not at war in the "war on terror": Wars can end in the enemy being defeated. (The war on terror could never end, as noted above. Indeed, since there has always been terrorists, when did this war begin?) Wars also have readily identifiable armies -- presumably supported by a nation. (Terrorists are not the army of a Government.) Wars have identifiable battlefields. (For terrorists, the battlefield is everywhere.) Wars have enemies that are affiliated in something other than the loosest possible sense of the word. (We couldn't negotiate peace with terrorists because there is no central command to negotiate with.)

When we attacked Iraq, that was all true. Same thing with WWI. WWII. Vietnam. The Korean War. The Revolutionary War.

None of that is true of the War on Terror or the War on Drugs.
6.13.2007 3:24am
David M. Nieporent (www):
Geneva seems relatively clear: if they're not POW's, then they're civilians, and if they commit offenses as civilians, then they're triable under our municipal law, outside the circumstances of a drumhead tribunal on the battlefield.
Geneva DOES seem relatively clear, but not in the way you're reading it. It does not purport to divide the world into POW or civilian. It defines which combatants get to be POWs. At no point does it suggest that those who don't are deemed noncombatants.

What's really puzzling is people who want to give those who violate the rules of war more rights than those who obey those rules. POWs get certain privileges, to be sure -- the most important for our purposes being that they are immune from interrogation -- but they can be held indefinitely without being charged with anything, and as long as they're not charged with anything, they're not entitled to any sort of process at all.

Indeed, the only thing the relevant G.C. requires is that if we're not sure whether someone is entitled to be treated as a POW, we must treat him as one until we hold a hearing. It certainly doesn't say that if we're not sure, we must release him.
6.13.2007 3:41am
David M. Nieporent (www):
Erasmus: let's suppose that after D-Day, an airstrike killed Hitler and the German central command fell apart. All German units started acting on their own, fighting us but without any centralized direction. When our troops would defeat a particular German unit and advance, the remnants of that unit would carry out attacks behind our lines, against both military and civilian targets. But all without central direction -- there was nobody to order any of the troops to surrender, nobody for us to negotiate with.

Are you arguing that this would then cease to be a war?
6.13.2007 3:49am
hey (mail):
The West is simply unserious in its dealing with rebels, traitors, terrorists, and other types who use violence to advance political ends. I'm not sure to what extent the people on this thread who want protection for our enemies agree with them (especially the SLA/Weathermen/Baader-Meinhoff types) or just have their heads in the sands.

The whole ideal is far too focused on "criminality" when it should be focused on war. The Left uses the Tet photo to attack the US and the Vietnamese effort, when it was simply a spy getting his due. Meanwhile the journalists who won the war for the North Vietnamese and the Russians were being willfully led along by a Northern spy as the media elite played with the communist leades and embraced every communist insurgency around the world. We have very strong laws against treason, but no one will enforce them and thus our treason problem is just as bad as our illegal immigration problem thanks to our unenforced borders.

As to Orin's hypotheticals, #5 should be legal (drug prohibition is even dumber than alcohol prohibition, since the chemistry is easier, cheaper and less capital intensive - if not non-existent - for drugs than for alcohol) while the rest should be dealt with by the military or an effective paramilitary secret service were the US to have one (the CIA is run by ACLU types who faint at the prospect of running a wiretap, never mind killing someone). Anyone using violence to achieve political ends is guilty of adhering to an insurrection or rebellion and deserves nothing more than to be shot on sight, whether they are robbing a bank to fund Republicans, Communists, Vegans, Buddhists, or what have you. We need to bring down extreme force to eliminate the idea that political violence is acceptable - we have been spoiled by a lack of real risk and have let far too much go as just minor tomfoolery of no importance, to the extent of seriously damaging the integrity of our closest ally and letting many revolutionaries and terrorists run wild.

Libertarian ideals and an ACLU view of civil liberties is only possible with domestic peace and an absence of malevolent foreign infiltrations. Currently we need to reinforce the physical security of the people with hard measures. Rather than Quirin or anything, we need to go back to a Roman understanding - Silent enim leges inter arma - in all locations, not just when the courts have been forced closed.

However, we should not hold prisoners indefinitely in gitmo like locations. All combatants who do not adhere to the restrictions of the Geneva conventions or who do not adhere to a Geneva signatory should be executed as soon as they lose their intellgence value. That has always been the rule for spies and saboteurs, and we are now facing an army of spies and saboteurs who fight for an organisation that denies the premise of the Geneva conventions. Execute every last one of them and be done with it, along with Lynn Stewart and her ilk.
6.13.2007 5:21am
George Weiss (mail):
hey (mail):

what about the question of how we know people ARE terrists...

suppose an american citizen in ohio is arrested and suspected of terror...the gov claims to have seen him in afgan....

sure..you may say we shouldnt protect our enimies..but how do we know whos who...if we dont give it some process...than well never know
6.13.2007 6:18am
ATRGeek:
Shelby,

Again, I don't see how you are disagreeing with my central claim ("This, of course, raises the strong possibility that neither our police nor our military can really be looked to for a solution to the problem of terrorism. At most, they can just help deal with terrorism within the limits of what they are capable of doing."). As I noted before, I don't deny that the military has a role to play. I just don't think they can provide the ultimate solution.

Dan Simon,

You might look some time at the Manual for Courts-Martial and the Military Rules of Evidence.

David M. Nieporent,

First, alleged POWs are entitled to process: a status hearing. Second, they cannot be held "indefinitely". Rather, they can only be held until the cessation of hostilities. As many have pointed out, this is the fundamental problem with holding people as combatants when the "war" in question is metaphorical--metaphorical "wars" don't have a definable end, so you are de facto holding them indefinitely.

As for your German hypothetical: this is a good illustration of why counterfactual hypotheticals are more misleading than helpful. I am quite confident that the German Army had provisions in place to deal with the loss of command, and that someone in the German military hierarchy would have taken command in the situation you describe. Moreover, defeated German units were perfectly capable of surrendering in the field. All these are aspects of a professional army, and you are basically trying to hypothesize that the Germans both were and were not a professional army.

hey,

Actually, a serious person might consider the possibility that our legal and moral values make us stronger, not weaker, than our enemies. Thus, a serious person might be deeply concerned that abandoning our legal and moral values would make us weaker, not stronger, as we deal with terrorism. I might note that such serious people would include the likes of Colin Powell, and many other military experts.

Indeed, one might be tempted to suggest that those arguing we need to abandon our legal and moral values in the name of getting "serious" about terrorism are actually about as serious as a 5th-grader talking tough on the playground. One might then suggest that it is high time the adults who actually understand the world, including what military force can and cannot achieve, should be taking over the conversation from the playground types.
6.13.2007 8:37am
Zarkin:
Perhaps we're missing the classic middle ground that existed in history. Professor Kerr is correct in noting a difference between the laws governing war and crime and the correct manner of detaining individuals in each circumstance.

But history gives us the intermediate classification of the pirate, which perhaps gives us a model to apply to today's international terrorist.

While a coherent definition of terrorism is beyond me at the moment, it is worth noting that the real threat of terrorism lies not in the immediate casualties but in the concurrent weakening of State sovereignty and the loss of the monopoly of force. (Terrorism is a reversion to sub-national militias, re-creating the horrors that gave rise to the Thirty Years' War and the Peace of Westphalia.)

Wikipedia--though always to be taken with a grain of salt--offers this description of the historic legal constructs justifying the pursuit, capture, and execution of pirates.

"Piracy is of note in international law as it is commonly held to represent the earliest invocation of the concept of universal jurisdiction. The crime of piracy is considered a breach of jus cogens, a conventional peremptory international norm that states must uphold. Those committing thefts on the high seas, inhibiting trade, and endangering maritime communication are considered by sovereign states to be hostis humani generis (enemies of humanity).[citation needed]

"In English admiralty law, piracy was defined as petit treason during the medieval period, and offenders were accordingly liable to be drawn and quartered on conviction. Piracy was redefined as a felony during the reign of Henry VIII. In either case, piracy cases were cognizable in the courts of the Lord High Admiral. English admiralty vice-admiralty judges emphasized that "neither Faith nor Oath is to be kept" with pirates; i.e. contracts with pirates and oaths sworn to them were not legally binding. Pirates were legally subject to summary execution by their captors if captured in battle. In practice, instances of summary justice and annulment of oaths and contracts involving pirates do not appear to have been common.

"Since piracy often takes place outside the territorial waters of any state, the prosecution of pirates by sovereign states represents a complex legal situation. The prosecution of pirates on the high seas contravenes the conventional freedom of the high seas. However, because of universal jurisdiction, action can be taken against pirates without objection from the flag state of the pirate vessel. This represents an exception to the principle extra territorium jus dicenti impune non paretur (the judgment of one who is exceeding his territorial jurisdiction may be disobeyed with impunity)."

Food for thought, I hope.
6.13.2007 9:32am
Bart (mail):
Just an Observer:


Bart, Your idea would make sense only if we actually treated Al Qaeda detainees as POWs, which we refuse to do. Such detainees cannot be expected to pay the price of combatant status (detention without due process) without the benefits of POW protections.

This is precisely what I meant by the issue of lawfulness confusing the predicate issue of whether the the prisoner is a combatant or a civilian. You are starting with your preferred outcomes (treating the prisoner as a POW or a civilian and avoiding a designation as an unlawful combatant) and working backward to achieve these ends. The lawfulness of the prisoner's activities is not an element of the predicate determination of whether he is a combatant or a civilian and should not be considered in this process. Assuming the prisoner and his organization is acting lawfully prevents advocates like yourself from muddying the water to achieve your desired outcome.


And, obviously, the other problem is that Al-Marri denies being a combatant.

My methodology assumes that the prisoner is denying or remaining silent concerning his combatant status. Otherwise, there would be no determination to make.
6.13.2007 9:43am
Bart (mail):
Dan Simon (mail) (www):


Bart: Prisoner of war status is protective, not punitive. It is meant to simultaneously protect the combatant from being treated like a common criminal while protecting our troops and civilians from the combatant returning to a action. Prisoner of war status is usually something combatants seek, rather than avoid.

That was before the Warren Court Revolution. Today, everyone clamors to be declared a common criminal, because the evisceration of the criminal justice system hasn't yet been extended to its military counterpart (although the courts are obviously working overtime these days to rectify that oversight).

You make a good point concerning the inappropriateness of our civilian criminal justice system to deal with enemy combatants, but I would not blame the Warren Court in this regard.

There are two problems with trying these kind of cases in our civilian criminal justice system.

First, when we try domestic criminals, the law enforcement authorities control the crime scene inside the United States. During an overseas war, our military often does not have control over the battlefield to gather physical evidence and cannot compel witnesses to appear in a US court. In any case, soldiers hardly have the training to perform law enforcement functions.

Second, and more importantly, much of the evidence against a combatant is often gained through classified intelligence sources. As in spy cases, if the government is compelled to try the combatant in open court, the government is placed in the conundrum of blowing the intelligence source in open court or declining to try the defendant.
6.13.2007 10:09am
Just an Observer:
Bart: Assuming the prisoner and his organization is acting lawfully prevents advocates like yourself from muddying the water to achieve your desired outcome.

In the words of Judge Motz, "breathtaking."

You say you assume the prisoner denies he is a combatant -- as I emphatically do -- but as I understand it you would presume all such prisoners to be POWs for such classification purposes.

It's not okay for the government -- which may suspect me of planning to hack computers -- to seize me at my home in Peoria, classify me as a POW without a presumption of my innocence, and ship me to a camp for indefinite detention.

If my presumption of innocence is what you object to, too bad. I'll stick with the Bill of Rights.
6.13.2007 10:23am
J. F. Thomas (mail):
What's really puzzling is people who want to give those who violate the rules of war more rights than those who obey those rules. POWs get certain privileges, to be sure -- the most important for our purposes being that they are immune from interrogation -- but they can be held indefinitely without being charged with anything, and as long as they're not charged with anything, they're not entitled to any sort of process at all.

POWs get extraordinary rights. They are to be treated with the same rights and privileges (including access to commissaries) and receive the same rations as soldiers of a similar rank in the capturing Army. Officers can not even be compelled to work. Google American, British or Canadian POW camps during World War II where Germans were held and you will see that senior officers had individual houses and flag officers were even allowed to have servants. POWs in the U.S. often ate in the mess with their (white) guards and actually were treated better than their black guards in the south. They often ate better than the surrounding population and because of their commissary privileges were able to actually send food packages back home to Germany. When I lived in Germany I had a friend whose father had surrendered to the Americans and been a POW in England for three years (he was actually not released until 1948). He had nothing but fond memories of his experience.
6.13.2007 10:25am
chris c:
Anderson, you ask above - "I am still waiting for someone to explain what is so unworkable about this framework -- why we have to invent new categories, throw out existing precedents, etc."

I think the answer to this is that if you treat the AQ suspects in the hypo as criminal defs, then your ability to question them at length and gain intel is stymied. They ask for a lawyer and the govt must stop any questioning unless it wants to risk losing admissible evidence. (I've read that KSM actually asked for a lawyer when seized.)

I suppose advocates of treating them as crim defs might say "well, you can still question them, you just can't use any of that info at trial.' but then you're asking the govt to make a hobson's choice between trying to find out if someone awful is set to occur, and potentially having to release thr suspects because the admissible evidence doesn't go beyond reasonable doubt.

As Orin notes in his post, the key here is that prevention of crime is not the focus of the criminal justice system; punishment and getting them off the streets is (I know both are incidentally intended to deter others, but you get the point.)

In dealing with the risks posed by intl terror, though, punishment seems small consolation.

Also, as someone else noted, the model urged by many Admin foes seems to give AQ suspects better treatment than POWs - counsel and the prospect of trial and release before the end of hostilities, among other things. This would mean that Rommel and Yamamoto (if they'd been captured) would have gotten fewer rights than bin laden. This seems exactly backwards to me.

It would also seem to create a perverse disincentive for a combatant vs the US - rather than conducting himself as a lawful POW, and face indefinite detention, why not cross the line to pure mayhem, knowing you'll be immune from questioning, defended by govt provided counsel, and if things go your way get released to go forth and murder again?
6.13.2007 10:50am
Bart (mail):
Just an Observer:


You say you assume the prisoner denies he is a combatant -- as I emphatically do -- but as I understand it you would presume all such prisoners to be POWs for such classification purposes.


No. A POW is a combatant who is acting lawfully. I am only making the predicate determination of whether the prisoner is a combatant without making the second determination of whether the prisoner is acting lawfulle and qualifies for POW benefits. To make this combatant status determination, I am suggesting that we initially assume that the prisoner was acting lawfully to remove that distractor from the predicate determination. This assumption is not a finding.


It's not okay for the government -- which may suspect me of planning to hack computers -- to seize me at my home in Peoria, classify me as a POW without a presumption of my innocence, and ship me to a camp for indefinite detention. If my presumption of innocence is what you object to, too bad. I'll stick with the Bill of Rights.

Under the current CRST rules, there is presumption of innocence and the government must prove that the prisoner is an enemy combatant.
6.13.2007 10:54am
Seamus (mail):
The first and most important is that members of a terrorist cell see themselves at war; they see themselves as soldiers in a holy war against the United States, and are acting accordingly. When a group sees themselves as soldiers at war trying to kill you, it seems fair that you should want to return the favor.

So it the Brits were wrong when they held IRA terrorists as criminals, and the IRA was right to insist they be treated as captured soldiers.
6.13.2007 10:57am
Andrew J. Lazarus (mail):

So it the Brits were wrong when they held IRA terrorists as criminals, and the IRA was right to insist they be treated as captured soldiers.

Beat me to the obvious counterexample by five minutes. Good-o.
6.13.2007 11:04am
Anon. Lib.:
The reason OK's position is so frustrating is that he is not a hack but someone who is usually very intelligent, sensitive and fair. And the point is not that criticism of Al-Marri is somehow inappropriate but rather that OK has criticized it in a maddening fashion and glossed over the fact that his approach, if adopted by the courts, would allow the administration to continue horrific practices. The reasonable and just inference from the fact that this administration has used its broad claims of "executive authority" to horrifically and pointlessly violate the basic human rights of detainees, including detainees who have nothing to do with Al Qaeda or the Taliban, is that there is something drastically wrong with that framework. Yet OK ignores this reality entirely, choosing instead to rely on a strained and unrealistic hypothetical to offer intellectual support to the legitimacy of that framework.
6.13.2007 11:07am
Michael B (mail):
Great post, one that needs to be mined. Not sure how it would work itself into specific legal considerations, but I'd suggest Paul Berman's recent meditation on Tariq Ramadan and Ramadan's various social, political, cultural, intellectual, etc. initiatives is likely to supply some nettlesome issues and problems for the discussion.

At base, where both the Constitution and Bill of Rights (and all it duely represents) as well as a set of quasi-philosophical, religious and related initiatives (as are reflected in Ramadan) are involved, the problems are far more nettlesome or "dialectically intense" than any first, second, third or fourth take on the matter is likely to come to terms with. Ramadan is arguably the most articulate and the most sophisticated, in western terms, Muslim representative, as such he can serve as a type of Rosetta stone or filter through which underlying moral/philosophical issues (underlying legal considerations) can be rendered more transparent.
6.13.2007 11:14am
Just an Observer:
Bart: A POW is a combatant who is acting lawfully. I am only making the predicate determination of whether the prisoner is a combatant without making the second determination of whether the prisoner is acting lawfulle and qualifies for POW benefits.

You apparently are only concerned with lawfulness under the laws of armed conflict. But the combatant status still triggers detention. What does that have to do with my case, having been seized in my home in Peoria? I emphatically deny being a combatant, and I have a presumption of innocence and other constitutional rights.

Bart: Under the current CRST rules, there is presumption of innocence and the government must prove that the prisoner is an enemy combatant.

That is news to me, and contrary to my understanding. Could you provide quotes and links?

In any event, in the case of Al-Marri, he did not get a CSRT, and the CSRT rules only apply in Guantanamo. He got a hearing in a magistrate court, under procedures where there was no presumption of innocence; to the contrary, the government's multiple-hearsay charges had the rebuttable presumption of accuracy. The government says that a citizen would be due no more process than Al-Marri got.
6.13.2007 11:16am
Anderson (mail) (www):
Chris C: I suppose advocates of treating them as crim defs might say "well, you can still question them, you just can't use any of that info at trial.' but then you're asking the govt to make a hobson's choice between trying to find out if someone awful is set to occur, and potentially having to release thr suspects because the admissible evidence doesn't go beyond reasonable doubt.

Is that really correct? Similar considerations went into the notorious "Wall" b/t FBI and CIA, right?

But I don't see why a person in civil custody can't be interrogated by CIA or Pentagon interrogators for their own purposes, while insulating that information from the criminal prosecution.

I think the actual objection the feds have is that you can't torture someone in civil custody.

As for the idea that crime prevention isn't part of the criminal justice system, I think that's as true as we make it to be. I don't see why, for example, suspected associates of Qaeda members can't be surveilled (with a warrant). If the law doesn't allow that, it can be tweaked.

Frankly -- and I don't mean you, Chris C, or Prof. Kerr -- I think many of the objections to the present setup are made by people arguing in bad faith, who want to criticize the existing law in order to create a "Gitmo zone," if you will, where *no* law runs other than the writ of the executive. I'm not convinced that our better legal minds, particularly those in gov't service, have really spent much time since 9/11 thinking about what emendations to our present law might be necessary, without ditching fundamental distinctions and protections.
6.13.2007 11:35am
Bart (mail):
Just an Observer:


You apparently are only concerned with lawfulness under the laws of armed conflict. But the combatant status still triggers detention. What does that have to do with my case, having been seized in my home in Peoria? I emphatically deny being a combatant, and I have a presumption of innocence and other constitutional rights.

I was not addressing your hypo. If you care to expand on the hypo, we can discuss it. For example, give us all the evidence the Government possesses that you are an enemy combatant. I am not going to play games with you in a hypo which assumes you are innocent as driven snow and the government has "disappeared" you at a whim. This is not a realistic hypo.


Bart: Under the current CRST rules, there is presumption of innocence and the government must prove that the prisoner is an enemy combatant.

That is news to me, and contrary to my understanding. Could you provide quotes and links?


I would be glad to provide you with a link. Here is the pertinent language:

Decision. The Tribunal will decide whether a preponderance of evidence supports the detention of the individual as an enemy combatant, and there will be a rebuttable presumption in favor of the Government's evidence.


In any event, in the case of Al-Marri, he did not get a CSRT, and the CSRT rules only apply in Guantanamo. He got a hearing in a magistrate court, under procedures where there was no presumption of innocence; to the contrary, the government's multiple-hearsay charges had the rebuttable presumption of accuracy.


Of course the Magistrate Court provided a presumption of innocence to al Marri. Al Marri had a right which he did not exercise to a preliminary conference where he could compel the government to produce the evidence on which he was being held for trial. If the Government could not offer a prima facie case, the court could have dismissed the case against him. al Marri has never denied the evidence against him.
6.13.2007 11:48am
RAH (mail):
Orin,

Seems clear to me that the 4th Circuit Court was correct. Also I do not like the idea that the President has the imperial authority to designate someone as an enemy combatant that is a citizen or legal resident or visitor. Supreme Court has indicated that legal visitors and residents have the same Constitutional protections as US citizens.
Even the enemy combatants in Guatanamo should have a hearing to determine their status and that should be within a year of detention. It appears tyrannical to hold a person for years without having a hearing on their status.

By the way I am a conservative. But a conservative is very vigilant about protecting civil liberties and should resist or be careful of dangerous powers retained by the government in the fear of terrorism or a fight against those who actively work for a jihadist ideology.
The same logic can be used in a war against drugs or gangs or whatever. Bad road to go down. We can deport this man and if the jihadist ends up on the battlefield, just shoot him later.
Even black ops can be done to eliminate terrorists that our criminal and military system cannot perform with their rule structure. But black ops are usually extralegal and not bound by legal rules.

The saying that those who give up freedom for safety get neither is all ways foremost in my mind.

1. U.S. citizen seized in Afghanistan, suspected of helping the Taliban forces in battle.
Treason or aiding and abetting the enemy in a foreign land- military rules

2. U.S. citizen suspected of blowing up a federal building as part of a plot to overthrow the U.S. government.
US citizen has standard constitutional rights - Civilian Criminal Case

3. Suspected German soldier seized on the battlefield on D-Day in 1944.
POW- Military case

4. Frenchman seized on the battlefield on D-day in 1944 suspected of helping the Germans.
Seized on battlefield -military case- may be turned over to foreign authorities for prosecution if they exist.

5. Suspected crack cocaine dealer arrested in New Jersey.
Crime and arrest in US under Civilian criminal rules.

6. Suspected Al Qaeda terrorist seized in U.S. after entering the U.S. to launch another 9/11.
Crime and arrest in US Civilian criminal rules. Govt need to prove case same as in cocaine dealer.

7. Suspected Al Qaeda terrorist seized in Iraq after entering Iraq to join fight against U.S.
Crime and arrest in battlefield- military case.

8. U.S. citizen who lives in Detroit and suspected to be a supporter of Al Qaeda; evidence suggests he sent $10,000 to a "charity" that is really a fun to help Al Qaeda launch more attacks in United States.
Crime and arrest in US - civilian criminal case. Case has to be proven.

9. Egyptian citizen in the U.S. on a tourist visa seized in the U.S. on suspicion of planning attacks against a U.S. military base.
Crime and arrest in US - civilian criminal case

10. U.S. soldier in World War II suspected of being a double agent for the Germans.
Military tribunal since soldier is under military authority as a US soldier
6.13.2007 11:57am
Just an Observer:
Bart,

If you are afraid to address my hypo, so be it. The facts seem pretty simple to me.

What I don't understand is, if your general rules don't apply to this simple hypothetical, what do they apply to? What problem is being cured by allowing the government to presume any of us to be POWs?

As for your prior claim that "under the current CRST rules, there is presumption of innocence," the quote you provided explicitly refutes your assertion! The CSRT procedure explicitly grants the presumption to the government, not the detainee. The same was true in Al-Marri's civil hearing.

A rebuttable presumption in favor of the government is the opposite of presumption of innocence.
6.13.2007 12:04pm
Just an Observer:
Bart: Al Marri had a right which he did not exercise to a preliminary conference where he could compel the government to produce the evidence on which he was being held for trial. ... al Marri has never denied the evidence against him.

Just to get the facts straight, Al-Marri was not being held "for trial" at all. Rather, he was and is in military custody as an "enemy combatant." No charges are contemplated, AFAIK, and no trial at all.

I am unaware of a discovery process whereby Al-Marri could compel the government to produce anything.

I believe Al-Marri did deny the government's allegation, but did not offer evidence of his own to rebut the government's hearsay claims, which enjoyed the presumption of truth. On that basis, his habeas petition was dismissed.
6.13.2007 12:26pm
Seamus (mail):
1. U.S. citizen seized in Afghanistan, suspected of helping the Taliban forces in battle.
Treason or aiding and abetting the enemy in a foreign land- military rules


What about someone analogous to Ezra Pound: a U.S. citizen seized in Afghanistan, suspected of helping the Taliban, but by making propaganda broadcasts rather than in battle? How about if he was working a civilian job in the Ministry of Defense? (Old Ezra, of course, was indicted for treason by the United States District Court for the District of Columbia. Does anyone believe this was the wrong choice?)
6.13.2007 12:28pm
Bart (mail):
Just an Observer:


As for your prior claim that "under the current CRST rules, there is presumption of innocence," the quote you provided explicitly refutes your assertion! The CSRT procedure explicitly grants the presumption to the government, not the detainee. The same was true in Al-Marri's civil hearing.

You apparently do not understand the presumption of innocence. Under a presumption of innocence, the government bears the burden of proof and the accused does not have to offer any evidence. Under a presumption of guilt, the accused bears the burden of proving that he did not commit the crime of which he is accused and the government does not have to offer any evidence. In the CRST process, the government bears the burden of proof.

What you are having a problem with is the level of evidence the government must offer in a CSRT to prove that the prisoner is an enemy combatant. The level is preponderance of evidence with the government's evidence getting a rebuttable presumption. Under this standard, the government must still present a preponderance of evidence and the prisoner is assumed not to be an enemy combatant of the government cannot carry this burden.
6.13.2007 12:29pm
Bart (mail):
Just an Observer:


Bart: Al Marri had a right which he did not exercise to a preliminary conference where he could compel the government to produce the evidence on which he was being held for trial. ... al Marri has never denied the evidence against him.

Just to get the facts straight, Al-Marri was not being held "for trial" at all. Rather, he was and is in military custody as an "enemy combatant." No charges are contemplated, AFAIK, and no trial at all.

We may be talking about two different proceedings. al Marri was originally held under civilian criminal charges and later transferred to military custody as a combatant.

I am speaking of the civilian criminal proceedings. Are you referring to the later enemy combatant proceedings?
6.13.2007 12:32pm
Just an Observer:
Bart: I am speaking of the civilian criminal proceedings. Are you referring to the later enemy combatant proceedings?

Yes, of course. The earlier criminal charges were dismissed, with prejudice, long ago on the government's motion.

It is Al-Marri's habeas petition challenging his "enemy combatant" detention, and the resulting appeals, that were the subject underlying this series of threads at Volokh.
6.13.2007 12:45pm
ATRGeek:
Anderson,

It may be a bit off-topic, but I really think you are overlooking the danger of "tweaking" the criminal law so it can be used in a preventive way.

For a moment, forget about terrorism. Think about a criminal law which was designed primarily to prevent people from committing crimes in the future, whether it be terrorism, murder, child molestation, fraud, or shoplifting. What sort of state action would be allowed in advance of the alleged future crime? What would the state have to prove about the person who was allegedly going to commit the future crime, and what sorts of evidence would they be able to use? What powers of investigation would you give the state to develop this evidence? When, for example, could the state get a warrant for an arrest or a search?

Focusing on that last issue, the current probable cause standard for a warrant is basically "information sufficient to warrant a prudent person's belief that the wanted individual had committed a crime (for an arrest warrant) or that evidence of a crime or contraband would be found in a search (for a search warrant)." How would you transform this standard for crimes not yet committed?

I know you are concerned about developing a new body of law to deal with the issue of terrorism. But I really think you need to be concerned as well about what happens to criminal law if you decide to "tweak" it for the purpose of using it in the terrorism context.
6.13.2007 12:46pm
Anderson (mail) (www):
JaO, Bart is right that al-Marri was re-indicted in Illinois on the charges dismissed in NY. Slip op at 6-7.

Slip at 4 says "He has been held by the military ever since -- without criminal charge or process," which is confusing -- I don't see how the military could bring a *criminal* charge against him. But I guess that is part of the New Learning, to coin a phrase.
6.13.2007 12:47pm
Bart (mail):
Just an Observer:

Bart: Al Marri had a right which he did not exercise to a preliminary conference where he could compel the government to produce the evidence on which he was being held for trial. ... al Marri has never denied the evidence against him.

Just to get the facts straight, Al-Marri was not being held "for trial" at all. Rather, he was and is in military custody as an "enemy combatant." No charges are contemplated, AFAIK, and no trial at all.


We may be talking about two different proceedings. al Marri was originally held under civilian criminal charges and later transferred to military custody as a combatant.

I am speaking of the civilian criminal proceedings. Are you referring to the later enemy combatant proceedings?
6.13.2007 12:48pm
Just an Observer:
Bart: You apparently do not understand the presumption of innocence. Under a presumption of innocence, the government bears the burden of proof and the accused does not have to offer any evidence.

I understand "presumption of innocence" just fine, thank you. And when the government charges enjoy a rebuttable presumption, which can be rebutted only by evidence offered by the detainee, that is not presumption of innocence.
6.13.2007 12:50pm
Anderson (mail) (www):
ATR, those are precisely the questions we need to be asking. But I think they present a lot less danger than redefining civilians as combatants. On my approach, we have the criminal justice system with which we're familiar, "tweaked" as need be, with the courts evaluating and contributing to the process. On the other, we are making it up from scratch, and having (for ex) military commissions trying offenses that have nothing to do with the laws of war.

I don't pretend to be an expert here, but what about the Mafia? Were they not wiretapped legally, for the purpose of detecting conspiracies &crimes not yet committed? It just seems to me that you're painting the existing law-enforcement methods a bit narrowly.
6.13.2007 12:51pm
Bart (mail):
Sorry about the accidental repost. I am having server problems.

JaO, Anderson is correct. al Marri was indicted in Illinois federal criminal court with most of the same evidence which the enemy combatant designation was made.

This is the proceeding to which I was referring.
6.13.2007 12:51pm
Just an Observer:
Bart: I am speaking of the civilian criminal proceedings. Are you referring to the later enemy combatant proceedings?

Of course. The criminal charges against Al-Marri were dismissed with prejudice, on the government's own motion, years ago when they took him into military custody.

It is Al-Marri's habeas petition challenging his military detention as an "unlawful combatant," and the resulting appeals, that are the subject triggering this series of threads at Volokh.
6.13.2007 12:57pm
Bart (mail):
Just an Observer:

I understand "presumption of innocence" just fine, thank you. And when the government charges enjoy a rebuttable presumption, which can be rebutted only by evidence offered by the detainee, that is not presumption of innocence.

Of course you can have a presumption of innocence when the government's evidence has a rebuttable presumption of accuracy. This is an evidence admissibility issue.

For example, breath alcohol tests offered as evidence in DUI cases across the nation generally have a rebuttable presumption that their findings are accurate so the state does not have to lay a foundation every time the evidence is offered. However, that does not prevent the defendant from rebutting the evidence in cross and with contrary evidence. No one to my knowledge has ever argued that this presumption violates the presumption of innocence and, if someone has advanced this argument, it was rejected by the courts.
6.13.2007 12:59pm
RAH (mail):
Seamus,

I think a US citizen could be charged in civilian court also as aiding and abetting the enemy. He may not get convicted since evidence rules would be more strict. Or he could get a military trial as such. The issue is holding someone without charges or possibility of trial to see if innocent or guilty. Spy and saboteurs operating in their enemy country could be shot without trial. But your case is not a spy or saboteur he is a traitor or lesser charge of aiding and abetting the enemy. I think this should be done under civilian courts.

The problem is much of the media ie: NY Times can be charged with aidding and abetting the enemy by the same logic. Many in our nation would object if political objectors and newspapers and bloggers could be charged with the same for publishing enemy proganda. So the distinction of what nation the crime was being comitted helps peoples comfort zone that this is a clearer case of aiding and abetting the enemy.
6.13.2007 1:03pm
Just an Observer:
Anderson,

Keep reading. The Illinois criminal charges were themselves dismissed.
6.13.2007 1:03pm
ATRGeek:
Bart,

You are confusing a burden of production with a burden of proof. Even if the government had a burden of production in a CSRT, the fact that the standard is a "preponderance of the evidence" means they have no heightened burden of proof (which a presumption of innocence would provide), and the fact that there is a rebuttable presumption in favor of the government's evidence means that the detainee actually has a heightened burden of proof, not the government.

Moreover, I see nothing in that document which indicates the government actually has a burden of production. The rules specify that the detainee gets notice and opportunity to provide evidence, but I see no requirement that the government actually present evidence. Indeed, the linked article emphasizes that "[e]ach of these
individuals has been determined to be an enemy combatant through multiple levels of review by the Department of Defense."

Moreover, the defendant can be excluded from the proceedings in the name of national security, so they apparently have no right to hear the evidence presented by the government (assuming the government does present evidence). So, it appears the detainee has to present evidence to the tribunal explaining why the DOD's determination of status was wrong, without necessarily being able to hear any evidence against them, even though the government's evidence enjoys a rebuttable presumption in its favor.

That is about as far from a presumption of innocence as you can get.
6.13.2007 1:05pm
Anderson (mail) (www):
The Illinois criminal charges were themselves dismissed.

Right, but only on the feds' request when they swooped in to have him declared an enemy combatant. It's not at all clear that the case wouldn't have proceeded to trial had the feds not switched trains.
6.13.2007 1:07pm
Just an Observer:
Bart,

In Al-Marri's case, the evidence was not a breath test but a list of hearsay assertions summarized by a government bureaucrat, Jeffrey Rapp, which reads like an indictment. From the opinion:

The Rapp Declaration asserts that al-Marri: (1) is "closely associated with al Qaeda, an international terrorist organization with which the United States is at war"; (2) trained at an al Qaeda terrorist training camp in Afghanistan sometime between 1996 and 1998; (3) in the summer of 2001, was introduced to Osama Bin Laden by Khalid Shaykh Muhammed; (4) at that time, volunteered for a "martyr mission" on behalf of al Qaeda; (5) was ordered to enter the United States sometime before September 11, 2001, to serve as a "sleeper agent" to facilitate terrorist activities and explore disrupting this country's financial system through computer hacking; (6) in the summer of 2001, met with terrorist financier Mustafa Ahmed Al-Hawsawi, who gave al-Marri money, including funds to buy a laptop; (7) gathered technical information about poisonous chemicals on his laptop; (8) undertook efforts to obtain false identification, credit cards, and banking information, including stolen credit card numbers; (9) communicated with known terrorists, including Khalid Shaykh Muhammed and Al-Hawsawi, by phone and email; and (10) saved information about jihad, the September 11thattacks, and Bin Laden on his laptop computer.

...

The magistrate judge ruled that the Rapp Declaration provided al-Marri with sufficient notice of the basis of his detention as an enemy combatant and directed al-Marri to file rebuttal evidence.

In response to the magistrate's ruling, al-Marri again denied the Government's allegations, but filed no rebuttal evidence, contending that the Government had an initial burden to produce evidence that he was an enemy combatant and that the Rapp Declaration did not suffice.


Basically, once the Rapp Declaration was introduced, and its allegations presumptively true, Al-Marri had an affirmative burden to introduce evidence to rebut those charges.

If you call that "presumption of innocence," remind me not ever to hire you as my defense attorney.
6.13.2007 1:30pm
ATRGeek:
Anderson,

You are falling into the false dichotomy trap. The idea some of us have proposed is to create a category which is neither "criminal" nor "combatant". So, this category would explicitly not be treating enemy civilians as combatants, but it would not be treating them as criminals either (unless they were indicted, tried, and convicted as criminals).

Second, I have explicitly stated that all three branches should be involved in developing these processes, which obviously would include the courts. Indeed, I personally see no reason why the US District Courts could not handle these cases. I think a lot of your wariness stems from your assumption that this would be done in a haphazard, unilateral fashion, rather than with all three branches fully involved.

Finally, it is actually quite difficult to get wiretapping warrants in a criminal investigation (both constitutionally and as a matter of statute). You certainly cannot go to a judge and say, "we have reason to believe this guy is in the Mafia, so we want to listen to see if he discusses any upcoming crimes".

I might note, by the way, that we already have a procedure in place for electronic surveillance in a preventive context, including terrorism: FISA. This is another example of how we could build out this new category from existing law, rather than trying to "tweak" criminal law (which to me sounds an awful lot like substantially weakening the careful protections built into criminal law).

Also, I should acknowledge that there are aspects of criminal law which are forward-looking, but they tend to be very carefully restricted precisely because of the potential for abuse. So, for example, the federal wiretapping act provides the judge must conclude "there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516 of this chapter." So, with respect to future crimes the application must specify a particular future offense, and it must be an offense that is "about to be committed".

Now, we could "tweak" all this and let LEOs get wiretaps for unspecified offenses in the indefinite future. But again, I don't think we should want that.
6.13.2007 1:30pm
Bart (mail):
ATRGeek:

Bart, You are confusing a burden of production with a burden of proof. Even if the government had a burden of production in a CSRT, the fact that the standard is a "preponderance of the evidence" means they have no heightened burden of proof (which a presumption of innocence would provide), and the fact that there is a rebuttable presumption in favor of the government's evidence means that the detainee actually has a heightened burden of proof, not the government.

The concept of a presumption of innocence does not require a heightened standard of proof. Our entire legal system is based on a presumption of innocence shifting the burden of proof to the accuser in criminal, civil and administrative proceedings. These proceedings all have varying standards of proof.

In criminal law, a defendant is considered by the law to be innocent until proven guilty at trial. However, the defendant enjoying that presumption may still be detained under lesser standards of proof before trial and it is only at trial that guilt must be proven beyond a reasonable doubt.
6.13.2007 1:31pm
Just an Observer:
Anderson: Right, but only on the feds' request when they swooped in to have him declared an enemy combatant. It's not at all clear that the case wouldn't have proceeded to trial had the feds not switched trains.

We are in agreement. I was just trying to keep the facts straight about Al-Marri's hearing on the later habeas petition, which had nothing to do with the defunct criminal case.
6.13.2007 1:35pm
markm (mail):
OK: "Suspected German soldier" is a rather odd phrase, unless "suspected" was added just by reflex. Usually WWII POWs were captured in uniform, no "suspected" about them. If captured out of uniform (or wearing Allied uniforms, as Skorzeny's commandos did at least once), they were suspected spies - and spies were tried according to the criminal model.

Also, it is possible to be both a POW and a criminal defendant, for instance the German officers who were tried at Nuremberg.
6.13.2007 1:42pm
Bart (mail):
Just an Observer:

Bart, In Al-Marri's case, the evidence was not a breath test but a list of hearsay assertions summarized by a government bureaucrat, Jeffrey Rapp, which reads like an indictment.

The Rapp Declaration is based on a criminal indictment which was obtained from a civilian grand jury to whom the evidence was presented.

Your objections to the hearsay is an admissibility issue which does not implicate the presumption of innocence.

The magistrate judge ruled that the Rapp Declaration provided al-Marri with sufficient notice of the basis of his detention as an enemy combatant and directed al-Marri to file rebuttal evidence. In response to the magistrate's ruling, al-Marri again denied the Government's allegations, but filed no rebuttal evidence...Basically, once the Rapp Declaration was introduced, and its allegations presumptively true, Al-Marri had an affirmative burden to introduce evidence to rebut those charges.

The Magistrate most certainly did not place the burden on al Marri to prove his innocence. The Government had presented its evidence to a grand jury and the petition to remove al Marri as an enemy combatant was based on that grand jury indictment. The Magistrate simply offered al Marri the opportunity to offer evidence on his own behalf before granting the Government's petition.

al Marri never denied the government's evidence, but rather demanded that it be presented in open court. This argument is based on the right to confront one's accuser, not the presumption of innocence.
6.13.2007 1:42pm
ATRGeek:
Bart,

In Coffin v. United States, the Supreme Court held that the presumption of innocence requires the government to meet a heightened burden of proof, specifically the beyond a reasonable doubt standard. If the standard of proof is instead "preponderance of evidence", there is no presumption of innocence. Indeed, that is why civil defendants do not in fact enjoy a presumption of innocence.

You are right that pre-trial detention does not require proof beyond a reasonable doubt, but that is because pre-trial detention does not require an adjudication of the defendant's guilt or innocence. Hence, a presumption of innocence would be irrelevant, because that matter is not at issue in a pre-trial detention hearing.
6.13.2007 1:54pm
Anderson (mail) (www):
Now, we could "tweak" all this and let LEOs get wiretaps for unspecified offenses in the indefinite future. But again, I don't think we should want that.

Reasonable minds can differ; I think that's much, much preferable to creating a whole new category of wrongdoer.
6.13.2007 1:56pm
ATRGeek:
Bart,

Where are you getting the idea that the Rapp Declaration was presented to a Grand Jury or that al-Marri was indicted for the events alleged by Rapp?
6.13.2007 1:59pm
ATRGeek:
Anderson,

First, I would suggest that "wrongdoer" is a loaded term. Enemy combatants are not really wrongdoers per se, and nor would I suggest should enemy civilians be wrongdoers per se.

Anyway, I think the bottomline is that you are de facto creating a new category of "wrongdoer", but your method would potentially reassign all people who would have been subject to the "untweaked" criminal law into this new category.
6.13.2007 2:05pm
Andrew J. Lazarus (mail):

I am not going to play games with you in a hypo which assumes you are innocent as driven snow and the government has "disappeared" you at a whim. This is not a realistic hypo.
Background: How many innocent people have been "disappeared" by governments on a whim? How many terrorist cells have been interrupted by illegal searches (based on evidence obtained through torture) on the verge of manufacturing and detonating a thermonuclear bomb?

Question: Which of these two scenarios does Bart deem a realistic hypo in this thread?

I conclude that I really don't understand lawyers.
6.13.2007 2:09pm
markm (mail):
Anon. Lib.:
"I just want to echo how frustrating it is to see OK contort himself, beginning, especially, with the strained and unrealistic hypo, in support of a regime that is committing real and horrific human rights abuses and which claims license to commit more."

Assuming you are referring to Bush, there are "real" violations, but not "horrific" ones. To begin to understand horrific, read a book by Alexander Solzhenitsen (spelling?). Watch a video of a man being beheaded with a dull knife just because he's the wrong religion. Talk to a Nazi concentration camp survivor. On a not as horrific scale, look up Kathryn Johnston, or the Branch Dravidian.

Compared to that, all Bush has done is lock people up without a trial - under conditions so harrowing they're getting fat. That is certainly a real violation when it's someone arrested in the USA (Jose Padilla), and Bush is an utter idiot to be creating precedents for his successor, who might be smart and imaginative as well as unscrupulous (Hillary, Edwards, Guiliani etc.) to us in making people disappear - but it's not at all comparable to the human rights abuses still going on in half of the world.
6.13.2007 2:11pm
markm (mail):
1. U.S. citizen seized in Afghanistan, suspected of helping the Taliban forces in battle.
Crime. Should be tried for treason and executed if the evidence supports the charge - not detained and released at the end of the "war".

2. U.S. citizen suspected of blowing up a federal building as part of a plot to overthrow the U.S. government.
Crime. (Unless it is part of a rebellion involving other overt acts.)

3. Suspected German soldier seized on the battlefield on D-Day in 1944.
I already asked about "suspected". If he's in German uniform, he's a POW (war). If he's out of uniform for purposes of deceit, he's a spy (crime).

4. Frenchman seized on the battlefield on D-day in 1944 suspected of helping the Germans.
Probably both war and crime. Detain him like a POW until it is possible for French authorities to try him for treason or whatever.
If it's going to be a long time, we could also hold a hearing about his status - POW, illegal combatant, innocent, something else? - but I think it's up to the French to try a French citizen for treason against France, and that's the charge with the heavyiest penalties.

5. Suspected crack cocaine dealer arrested in New Jersey.
Crime.

6. Suspected Al Qaeda terrorist seized in U.S. after entering the U.S. to launch another 9/11.
Crime. Prove it in court - or else we're enabling the President to also make political enemies disappear.

7. Suspected Al Qaeda terrorist seized in Iraq after entering Iraq to join fight against U.S.
If seized by our forces on the "battlefield", war - which doesn't preclude also charging him with war crimes such as using civilians as shields.
If handed over to us by bounty hunters (like many of the Gitmo detainees), he deserves a hearing to determine whether he really is an enemy,
and if so what his status is (POW or illegal combatant, and perhaps an alleged war criminal also).
Finally, however seized, if he was committing acts that most countries agree are crimes, outside of any effective
jurisdiction, the laws against piracy might apply.

8. U.S. citizen who lives in Detroit and suspected to be a supporter of Al Qaeda; evidence suggests he sent $10,000 to a "charity" that is really a fun to help Al Qaeda launch more attacks in United States.
Crime. Treason and violations of more specific laws, if the case can be proven in court.

9. Egyptian citizen in the U.S. on a tourist visa seized in the U.S. on suspicion of planning attacks against a U.S. military base.
Crime. Espionage/sabotage.

10. U.S. soldier in World War II suspected of being a double agent for the Germans.
Crime. Treason and espionage or sabotage. We sure as heck wouldn't want to just lock the guy up for the duration of
the war like a POW, we'd want to hang him - which requires a trial.
6.13.2007 2:14pm
J. F. Thomas (mail):
Spy and saboteurs operating in their enemy country could be shot without trial.

This is simply not true. It is not permissible under Geneva. It is not permissible under the UCMJ. It is not permissible under any reasonable interpretation of the rules of war. Spies and saboteurs are entitled to some form of trial and due process. They can not be summarily executed. I don't know where this notion comes from.
6.13.2007 2:20pm
J. F. Thomas (mail):
Compared to that, all Bush has done is lock people up without a trial - under conditions so harrowing they're getting fat. That is certainly a real violation when it's someone arrested in the USA (Jose Padilla), and Bush is an utter idiot to be creating precedents for his successor, who might be smart and imaginative as well as unscrupulous (Hillary, Edwards, Guiliani etc.) to us in making people disappear - but it's not at all comparable to the human rights abuses still going on in half of the world.

I don't know what fantasy world you are living in, but Bush has made people disappear, heck Donald Rumsfeld admitted it in a freaking press conference. The DoD has admitted that detainees in their custody (at least several dozen) have been tortured to death. The Bush administration has admitted used "enhanced interrogation" techniques which is just a euphemism for torture, I'm sorry if it is not bad enough torture to fit your definition, but it fits the definition of torture in the civilized world. Padilla has literally been driven insane by the treatment he has endured, and while any one of the methods used on him may not constitute torture in isolation, the cumulative effect most certainly is.
6.13.2007 2:27pm
Anderson (mail) (www):
Compared to that, all Bush has done is lock people up without a trial

MarkM, if you're unaware that America tortures people nowadays, then you haven't been paying attention.
6.13.2007 2:34pm
MattSF (mail):
I'm never been to law school and am probably missing something important, but I don't see either a need for or wisdom behind a continuum or specturm between war and crime. I don't see how all of Orin's examples can't be dealt with appropriately as instances of either crime or war.

Part of the confusion between what is war and what is crime seems to derive from a definition of war as an occurrence that can only occur between nation states. In the past, the limitations of how much damage could be done by non-state actors might have made such a definition workable. But with the advent of WMD a determined organization such as AQ is capable of inflicting more damage and casualties against a major power than probably 90% of the member nations of the UN. We need to revise the formal definition of "war" to include action by non-governmental entities such as AQ.

A key element this analysis seems to overlook is the longstanding existence in international law of the category of "unlawful combatant." As I understand it such persons are not accorded POW protections but neither are automatically thrown into the criminal justice system with "normal," civilian criminals. A modernized definition of "war" combined with appropriate use of the existing status of unlawful combatant would seem to address most possible detainee issues while preserving bright lines to restrain a possible slide toward authoritarianism.

So the Bush administration solution to Al Queda detainees has a good basis in the unlawful combatant designation, before they go mostly wrong. For one thing, the right to petition under habeas should exist for detainees (especially unlawful combatants captured off the battlefield out of uniform, and those more likely cases for mistaken identity or status) to question their identification as combatants. Such a right must remain for detainees arrested on US soil, absent a formal suspension of the writ in times of narrowly-defined invasion or rebellion.

And of course all detainees regardless of status should be protected from torture or other treatment banned by Common Article 3, the Convention on torture, and appropriate US law.

What we need is not a continuum but 1) a clarification of three possible categories: lawful enemy combatant (lets call them LECs), unlawful enemy combatant (UEC), and criminal (Cr), 2) legislation and hopefully international agreement on a definition of non-state entities capable of effectively waging war, and 3) US legislation on how to deal properly with UECs in a manner consistent with US and internatonal law, that also addresses our interest in preserving US moral authority.

Here's how Orin's examples might be addressed under such a regime:

1. U.S. citizen seized in Afghanistan, suspected of helping the Taliban forces in battle. LEC and POW, as US citizen might be tried for treason
2. U.S. citizen suspected of blowing up a federal building as part of a plot to overthrow the U.S. government. Criminal
3. Suspected German soldier seized on the battlefield on D-Day in 1944. LEC and POW
4. Frenchman seized on the battlefield on D-day in 1944 suspected of helping the Germans. Depending on details probably UEC, might be tried in France for criminal treason.
5. Suspected crack cocaine dealer arrested in New Jersey. Criminal
6. Suspected Al Qaeda terrorist seized in U.S. after entering the U.S. to launch another 9/11. UEC
7. Suspected Al Qaeda terrorist seized in Iraq after entering Iraq to join fight against U.S. UEC
8. U.S. citizen who lives in Detroit and suspected to be a supporter of Al Qaeda; evidence suggests he sent $10,000 to a "charity" that is really a fund to help Al Qaeda launch more attacks in United States. Criminal; if intent can be shown he might be tried for treason
9. Egyptian citizen in the U.S. on a tourist visa seized in the U.S. on suspicion of planning attacks against a U.S. military base. Criminal, or UEC if adherence to a known terror organization be shown
10. U.S. soldier in World War II suspected of being a double agent for the Germans. Probaly covered by UCMJ


——

Matt T
6.13.2007 2:36pm
Bart (mail):
ATRGeek:

Bart, In Coffin v. United States, the Supreme Court held that the presumption of innocence requires the government to meet a heightened burden of proof, specifically the beyond a reasonable doubt standard.

I do not read Coffin v. United States that way. In Coffin, the trial court instructed the jury on beyond a reasonable doubt but not on presumption of innocence. On appeal, the Government argued that these two concepts were synonymous, but the Court disagreed. Rather, the Court reasoned that the presumption of evidence is the requirement that the prosecution present evidence and beyond a reasonable doubt was the effect of that presentation of evidence.

Coffin did not hold that the presumption of innocence required evidence beyond a reasonable doubt. The requirement of evidence beyond a reasonable doubt or instructions thereof was assumed and not at issue in that case.

I agree that the term "presumption of innocence" is not generally used with civil and administrative proceedings, but the concept of burden of proof is the same.

The presumption of innocence is the antonym of the presumption of guilt. In the former, the accuser has the burden of proof and, in the latter, the accused has the burden of proof. The difference and the key element of each concept is who bears the burden of proof.
6.13.2007 2:58pm
Kazinski:
I agree with Orin's continuum framework, but with one proviso, once a person (US, or otherwise) is has been determined to have violated military law, even if they have also violated civilian law, then it is up to them how to process the person. It is the violation of military law, no matter how minor(which they are only subject to as combatants), that determines how the adminstration may deal with the person.

Despite what ATRGeek and Anderson have said, not only does Al Qaeda consider themselves combatants (whether legal or illegal) but Congress does too:

To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States....
Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and ...
Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, ...
That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.


The Kuncinch view has already been decisively rejected by Congress and the President.
6.13.2007 3:05pm
ATRGeek:
Bart,

OK, if I understand your claim now, it is that the government has both the burden of production and the burden of proof in a CSRT hearing (I don't agree that amounts to a presumption of innocence, but that is just semantics).

But I don't see where you are getting that from the link you provided. Again, the idea seems to be that the DOD has already made the necessary determination of the detainee's status, and the CSRT only provides the detainee with notice and an opportunity to be heard on the issue. So, it appears that detainee has the burden of production. Moreover, when you combine the preponderance standard with the rebuttable presumption in favor of the government's evidence, that means the detainee has the higher burden of proof when both the government and the detainee present evidence.

Hence, it appears to me that if neither the government nor the detainee present evidence, the DOD's determination stands. If both the detainee and the government present evidence, the government's evidence enjoys this presumption and hence the detainee has the burden of proof. So, I see no way in which one can claim the government in a CSRT has the burden of production and the burden of proof.

By the way, have you found your source for the claim that the Rapp Declaration was presented to a Grand Jury and al-Marri was subsequently indicted?
6.13.2007 3:27pm
abb3w:
First, a quibble: Our traditions know two basic ways of dealing with hostile actors: through war and through the criminal justice system.. I'd point out that there are only the "accepted" solutions; there is a lamentable US tradition of vigilantism. However, it seems for now the nature of the discussion ought to limit to socially sanctioned methods until strong reason is given otherwise.

That aside... for myself, I think the problem lies in the failure of International Law and Westphalian System to recognize anything but "state" and "non-state" organizations, and the normal categorization of "war" as only occurring between states, or as civil wars for control of a state. Recognizing other forms of potential semi-independent social groups (which man not be territorial in character) as possible war or criminal interactors might help clarify what manner of rules ought to govern the handling of individuals acting as agents for such groupings.

I also think Terry Practchet's Jingo might add an interestingly warped perspective to the discussion:
"You can't arrest the commander of an army!"
"Actually, Mr. Vimes, I think we could," said Carrot. "And the army, too. I mean, I don't see why we can't. We could charge them with behavior likely to cause a breach of the peace, sir. I mean, that's what warfare is."
Vimes's face split in a manic grin. "I like it."
"But in fairness out— that is, the Ankh-Morpork army— are also..."
"Then you'd better arrest them, too," said Vimes. "Arrest the lot of 'em. Conspiracy to cause an affray," he started to count on his fingers, "going equipped to commit a crime, obstruction, threatening behavior, loitering with intent, loitering within tent, hah, travel for the purposes of committing a crime, malicious lingering and carrying concealed weapons."
6.13.2007 4:00pm
Anderson (mail) (www):
Kazinski, you like to quote the AUMF, I know, but I don't see how authorizing the President to use force makes the targets of said force "combatants," any more than a similar authorization against a Colombian drug cartel would.

(And to borrow a hypo from elsewhere, does the AUMF authorize us to bomb a cottage in France that's used as a Qaeda base?)
6.13.2007 4:06pm
DavisTyner (mail):
One of the things that I think may be getting lost in this discussion is that the criminal/soldier distinction was considered in drafting the Geneva Conventions. The drafters were concerned about granting internal guerrilla movements and terrorists too much legitimacy (in terms of tacit recognition of their struggle) if they were treated as prisoners of war under the conventions and not as the common criminals many governments believed them to be. See Commentary to Common Article III (available at http://www.icrc.org/ihl.nsf/COM/375-590006?OpenDocument). This concern about granting legitimacy to a nationalist or separatist movement motivated the distinction between external and internal conflicts under the Conventions. See Common Article 3; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts.

Though that internal/external distinction isn't precisely relevant to our discussion since the Geneva Conventions always require an armed conflict to exist for the Conventions to apply, by analogy, I think it might be relevant. If we give terrorists captured by law enforcement personnel in our country Geneva Conventions protections (note, I do not mean POW protections), we risk giving more "legitimacy" to the actions of those terrorists than we might wish. If one goal is to minimize the legitimacy of the actions of terrorist, Professor Kerr's rationale of treating them how they view themselves becomes a bit problematic.

My own view on this issue is as follows: If the person in question is captured on a battlefield during or shortly after a military operation, give that person an Article 5 hearing to determine his/her status (POW/unlawful combatant) and treat that person according to how the Article 5 tribunal rules under the Geneva Conventions. Otherwise, if law enforcement personnel capture that person, treat him/her as a criminal suspect (with everything that doing so entails). Obviously, there will be situations on the margins, but those sorts of situations can be solved by promptly convening an Article 5 tribunal and letting that tribunal make the best judgment it can. Mine is, by no means, the most elegant solution, and I suspect many, including Professor Kerr, will be uncomfortable with how infrequently the Conventions would apply under my reading. But, I do believe that my solution is more consistent with what the Geneva Conventions require than is our current practice.
6.13.2007 4:11pm
Bart (mail):
ATRGeek:

I don't see where you are getting that from the link you provided. Again, the idea seems to be that the DOD has already made the necessary determination of the detainee's status, and the CSRT only provides the detainee with notice and an opportunity to be heard on the issue. So, it appears that detainee has the burden of production. Moreover, when you combine the preponderance standard with the rebuttable presumption in favor of the government's evidence, that means the detainee has the higher burden of proof when both the government and the detainee present evidence.

Hence, it appears to me that if neither the government nor the detainee present evidence, the DOD's determination stands. If both the detainee and the government present evidence, the government's evidence enjoys this presumption and hence the detainee has the burden of proof. So, I see no way in which one can claim the government in a CSRT has the burden of production and the burden of proof.


Again, I am reading these requirements differently than you do. The key language is:

Decision. The Tribunal will decide whether a preponderance of evidence supports the detention of the individual as an enemy combatant, and there will be a rebuttable presumption in favor of the Government's evidence.

This appears to be the standard civil or administrative burden of proof with a presumption of accuracy attached to the government's evidence. The Government cannot cannot prevail on this burden of proof without presenting evidence. Under this standard, if the Government only files a petition, but fails to present evidence to the CRST, the petition fails even if the Defense presents nothing.
6.13.2007 4:11pm
David Drake:
Matt--

Second your answers. The whole problem is how to sort out who is who, in 1,4,6,7 and 9, where the person seized is, presumably, not in uniform.

As I read Hamdi, a military tribunal can make the determination, even with respect to 1, which I take it is Hamdi.

As to a couple of the supposed parallel cases:
According to Wikipedia, Ezra Pound was indicted after WWII ended--he had been detained by the U.S. military in Italy when the U.S. liberated it but released. The U.S. was never in a declared (by declaration or AUMF) war with the Soviet Union when when the Rosenbergs were indicted, or at any other time. So both are very distinguishable from the current situation.

Re the duration of the conflict: interesting comment from
J F Thomas re the German held as a POW in England until 1948, btw.
6.13.2007 4:13pm
Terry Karney (mail) (www):
They see themselves at war?

So to the various militias which commit robberies to make ends meet. They get to declare themselves to be POWs? They've tried. The courts have denied them.

And rightly so, because the nature of that would make it possible for any group (or perhaps individual) who wanted to, to step outside the criminal system, and into the 'war' system.

Which is simple incarceration. Big Four (name, rank, date of birth and service number). All they'd need to do is send a copy of the Geneva Conventions, signed, to Geneva, and, boom, they are signatories.

Yes, it's a trifle simplistic, but how does one decide which groups get to declare war, and which don't?

Where does the intent to commit "acts of war" shift something from common criminality, to "War"?

All you've done is change one set of, what you see as gray areas, to another set. So far as I can see the shift is one which is harder to define.
6.13.2007 4:14pm
Harry Eagar (mail):
OK sez: 'Our traditions know two basic ways of dealing with hostile actors: through war and through the criminal justice system'

There is a rare third. On West Africa Slavery Patrol, the US Navy was required to bring suspects to the (or a) nearest US port for trial in the civil courts.

Juries always acquitted, especially as the nearer ports were in the South.

In an example of extraodinary renditions that no liberals have ever (so far as I've encountered) objected to, US officers would turn over captives to Royal Navy captains, who hanged them without trial.
6.13.2007 4:25pm
David Drake:
Andersen--

On August 20, 1998, the Clinton administration launched cruise missile attacks on a factory in the Sudan and an alleged Al Qaida base in Afghanistan, without an AUMF, in summary retaliation for alleged AQ attacks on US Embassies in East Africa.

So apparently the Clinton Administration thought it had inherent Constitutional authority to attack sovereign nations to retaliate against Al Qaida.

That sets the precedent for the attack on the French farmhouse, no? And with the AUMF, the Bush Administration's position would seem even stronger.
6.13.2007 4:30pm
ReaderY:

But just as a non-state actor like Al Qaeda may have a military arm, so too may it have non-military arms. That is the problem with your analysis (the assumption that Al Qaeda is all military arm, and nothing else).


I never said otherwise. I also never said that members of Al Qaeda were always unlawful combatants -- driving around generals would generally appear to be a lawful military activity, for example.

And I don't need to go this far to disagree with the 4th Circuit's decision. All that I am saying is that a citizen can indeed be lawfully found an "enemy combatant", that the standards and criteria for doing so are those found in Quirin, and the Quirin criteria are not to be interpreted hypertechnically and cover irregular as well as regular forces and actions. If what the Government is claiming is true; these criteria would make Al-Mari a sabateur in a fairly traditional sense and hence a military agent by classic categories. However, Al-Mari is entitled to a hearing to determine if this is the case and can file a petition for a writ of Habeas Corpus by which the habeas judge can determine if the hearing met minimal safeguards and/or make an independent decision as to his status.
6.13.2007 4:53pm
Brad Sallows:
I suppose that as a practical matter, you're at war whenever an agency extends efforts to achieve political ends (ie. impose its will upon you) to include force of arms. Whether the agency is a recognized state, a pretender, a government-in-exile, or a rabble with political aspirations is supplementary information. Whether a situation can be fitted to existing domestic or international legal frameworks is an illustration of how comprehensive the frameworks are. A poor fit suggests a necessity to modify the framework.

Those who employ force of arms are certainly combatants. It is clear that customary and treaty law distinguish between legitimate and illegitimate combatants. It should be equally clear that all illegitimate combatants may be subject to the same liabilities as legitimate combatants (eg. detention), and more. Those who support and accompany illegitimate combatants without directly employing force of arms share some of that liability, just as those who support and accompany legitimate combatants are extended various (but not identical) obligations and rights.

While there are compelling reasons to exclude one's regularly constituted military forces from engaging in non-military affairs, I can think of none to exclude a state from bringing all its agencies to bear on military affairs. In short, while the military should be excluded from domestic criminal matters, all the agencies of a state should be involved in a war effort.

Aside: I can understand the purpose of your Fourth Amendment (and constitutional law in general) being to restrain abuses by the state and agents of the state, but not to have any bearing on, for example, nosy neighbours. I believe once a serious problem is brought to your attention, you are both bound (a duty) and permitted (a right) to deal with it.
6.13.2007 4:59pm
Just an Observer:
Getting back to the macro issues raised by Orin's post, I would observe:

1) There is not such a huge difference in the CSRT process used in Guantanamo and the skeletal habeas process afforded to Al-Marri stateside. In both cases, the due process is significantly abbreviated compared to normal criminal procedure. Both shift the burden from the government to detainee, and both allow big-time hearsay. I see no provision for an exclusionary rule governing search-and-seizure in either. (Representation by counsel at the civil proceeding, but not a CSRT, is a notable difference. Admissibility of evidence derived from abusive interrogation is, I can only hope, another.)

2) Just as the review process in CSRTs and their supervising courts is being fleshed out, so are the contours of possible habeas corpus proceedings for "enemy combatants." Al-Marri's is the first, and his district court and magistrate judge were blazing new ground. As Orin mentioned in his oral testimony to Senate Judiciary recently, it may turn out that the degree of due process actually afforded in the civilian and military venues is similar.

3) While one might argue about whether the district court and magistrate got everything right in Al-Marri's case, overall they were trying to follow what they thought the Supreme Court's Hamdi guidelines allow -- even for citizens.

4) The key factor governing how far such preventive detention can reach into civil society is thus the gate that defines what classes of cases -- points on Orin's continuum, if you like -- are eligible for "enemy combatant" treatment in the first place. Thus, arguments that distinguish Al-Marri, Padilla, Hamdi and hypothetical John Does are critical, which is why this Fourth Circuit panel drew some lines. (Even Judge Luttig reinforced such lines in his somewhat narrow opinion on Padilla, hewing closely to Hamdi's factual predicate.)

5) The MCA actually does not authorize detention in the first instance for an "enemy combatant;" its definition of "unlawful enemy combatant" is limited to the context of detainees awaiting trial in military tribunals. The President claims such detention authority simply by exercising it.

6) Although the MCA purports to strip habeas jurisdiction from the courts only for aliens, what is left of habeas for purported "enemy combatant" citizens, in terms of real due process, may not amount to much. See 1) 2) and 3) above.

7) The administration places no serious limits on its theory about which domestic residents and citizens can be selected for such "enemy combatant" status, effectively defaulting them out of some rights we all take for granted. How the courts define the gate is basically what will govern.
6.13.2007 4:59pm
ATRGeek:
DavisTyner,

At a minimum, those seem like the right default rules (if you are captured by the military in a place subject to military law you start as a POW, and if you are captured by the police in a place subject to civil law, you start as a criminal subject).

Bart,

What "petition" are you talking about? I don't see any reference to a petition in the link you provided. Of course, I could see how if you wanted to make the government have the burden of proof, you would make them the petititoner. But from the link you gave, there doesn't appear to be any petitioner, unless maybe it is the detainee. Again, that link seems to suggest that as far as the government is concerned, the DOD already made the necessary determination, and the CSRT is just a subsequent review of that decision.

By the way, what about the Rapp Declaration going to a Grand Jury and al-Marri then being indicted? Are you just dropping that claim?
6.13.2007 5:00pm
Anderson (mail) (www):
On August 20, 1998, the Clinton administration launched cruise missile attacks on a factory in the Sudan and an alleged Al Qaida base in Afghanistan, without an AUMF, in summary retaliation for alleged AQ attacks on US Embassies in East Africa.

See my attempted reasoning here.

Further, say the Khost raid had been a commando mission that nabbed OBL. What would've become of him? He was indicted for the embassy bombings -- see the notorious FBI poster that doesn't mention 9/11 -- and presumably would've been prosecuted.
6.13.2007 5:02pm
ATRGeek:
ReaderY,

I think the basic point is that you have to try to reconcile Quirin with Milligan (and vice-versa, of course). Again, Milligan was planning to attack US arsenals and then attack US POW camps to free Confederate soldiers. By your broad (or not "hypertechnical", if you prefer) reading of Quirin, I don't see how Milligan would not also count as "a military agent by classic categories." But the Court held he was a civilian.

So, I just don't think it is right that the existing caselaw supports a broad reading of who counts as an enemy combatant rather than as a civilian. Rather, it seems to me that Quirin combined with Milligan imply that while the category of enemy combatant can apply to US citizens captured on US soil, that category must be applied narrowly (or "hypertechnically", if you prefer), and it is the category of "civilian" which is supposed to be applied broadly (or not "hypertechnically").

Incidentally, this goes to JaO's point as well. Quirin and Milligan both help define the "gate" through which someone must pass before they can be treated as a combatant rather than as a civilian, as does Hamdi. And I believe if you look at those three cases, it seems clear that the gate is narrow. Indeed, in light of the facts of Milligan, it has to be narrow because Milligan would have passed through anything but a pretty narrow gate.
6.13.2007 5:14pm
Anderson (mail) (www):
Btw, Scott Horton, never one to understate, considers Tony Snow's abysmal remarks on the al-Marri decision:

And at the end we have the real whopper: it is the essence of democracy, he suggests, for the president to place someone who is lawfully in the country on a student visa under military detention, beyond the review of any court, and torture him. Actually, the powers that Snow supposes to be vested in the president match an established category of governance that would have been easily recognizable to Aristotle. The word is tyranny: long defined as a system in which a single ruler has unchallenged power to detain and punish his subjects.

Leaving aside that al-Marri was not an American subject - er, citizen - I guess that the question for any defender of the MCA is, how is it to be distinguished from tyranny? Even a citizen, *if* designated an unlawful enemy combatant by the President, has to wait for a CSRT to plead his case -- a CSRT that need not ever actually be convened, as it wasn't in al-Marri's case.
6.13.2007 5:16pm
Anderson (mail) (www):
ATR is right to read Quirin narrowly. Confronted with Milligan's holding "that the law of war 'can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed,'" the Court described it as "having particular reference to the facts before it" (as how could it not?), and continued:

From them [i.e., the facts] the Court concluded that Milligan, not being a part of or associated with the armed forces of the enemy, was a non-belligerent, not subject to the law of war save as-in circumstances found not there to be present and not involved here-martial law might be constitutionally established.

The Court's opinion is inapplicable to the case presented by the present record. We have no occasion now to define with meticulous care the ultimate boundaries of the jurisdiction of military tribunals to try persons according to the law of war. It is enough that petitioners here, upon the conceded facts, were plainly within those boundaries, and were held in good faith for trial by military commission, charged with being enemies who, with the purpose of destroying war materials and utilities, entered or after entry remained in our territory without uniform--an offense against the law of war. We hold only that those particular acts constitute an offense against the law of war which the Constitution authorizes to be tried by military commission.


The "we know it when we see it" school of military jurisdiction? Bush v. Gore springs to mind.
6.13.2007 5:25pm
Andrew J. Lazarus (mail):

Leaving aside that al-Marri was not an American subject - er, citizen - I guess that the question for any defender of the MCA is, how is it to be distinguished from tyranny?
Tyranny is when it happens to Christians or the middle class. (See under: Cuba, Venezuela, Warsaw Pact.)

What we have is the Unitary Executive of the Best President Evah.
6.13.2007 5:30pm
David Drake:
Re the IRA: It seems apparent to me that the IRA would have loved to have the English classify its members as soldiers; after all, they called themselves an "army."

In those circumstances, the English were probably right to classify the IRA members as criminals, given the huge political component of the struggle against IRA terrorism.
However, characterizing the IRA as criminals and locking them up ultimately had disastrous PR consequences for the British government.

Congress has declared war against Al Qaida and its members, or at least authorized the Bush administration to use military force against it. The U.S could, I suppose, accuse everyone in Al Qaida of crimes, but it in my opinion it can also treat them as "enemy combatants." My authority for that proposition is the following quotation from Justice O'Connor's majority opinion in Hamdi:

"The AUMF authorizes the President to use "all necessary and appropriate force" against "nations, organizations, or persons" associated with the September 11, 2001, terrorist attacks. 115 Stat. 224. There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF. We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use." 542 U.S. 507. I don't have a page cite, but it's the fourth full paragraph of II.

Incidentally, that quote would seem to me to point to a reversal of Al-Marri, as, if the argument for holding a U.S. citizen member of the Taliban is that the Taliban aided Al Qaida, then the argument for holding a U.S. resident member of Al Qaida is stronger.

So the only question in my mind is figuring out who is an AQ member and who is not and then deciding what to do about it: charge the AQ members with crimes and prosecute them, or hold them until the end of Al Qaida. The answer may differ depending on the individual.
6.13.2007 5:43pm
Kazinski:
Anderson:
"does the AUMF authorize us to bomb a cottage in France that's used as a Qaeda base?"

Absolutley. We would have an obligation to notify the French and elist their cooperation in capturing the terrorists, but the laws of war is very clear on this point, if the enemy is conducting hostile operations out of neutral territory, then we have a clear right to encroach on that neutral territory to defend ourselves. With the Sarkozy administration I doubt that would be a problem.

However if France refused to cooperate then the Congressional authorization is clear:

...appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons...


I think a predator or cruise missle would be considered appropriate.

I know that you and many of the other commentors on this board don't think we should defend ourselves against terrorists. But to quote Al Gore: "The argument is over."
6.13.2007 5:53pm
PD Shaw (mail):
The Bush Administration did not create the category of illegal combatants. That category is at least as old as the Geneva Conventions.

I would say it's older. During the American Civil War, the Lieber Code distinguished between various categories of partisans, war rebels, armed prowlers, etc. Some would be treated as prisoners of war even if constituting an irregular force. Others might be summarily shot.

Some civilians engaged in what appeared to be simple criminal conduct during that war, but sought the status of prisoner of war because they thought they would be treated better. Arguably, the justice dispensed by the military courts in the mid Nineteenth Century was superior to that of the domestic courts, particularly as to the maintenance of a record of the proceedings and strict adherence to procedure.

I assume from their conduct that the defendants in Quirin were similarly disposed to think better of p.o.w. status, initially.

The Lieber Code:
6.13.2007 6:05pm
Justin (mail):
Absolutley. We would have an obligation to notify the French and elist their cooperation in capturing the terrorists, but the laws of war is very clear on this point, if the enemy is conducting hostile operations out of neutral territory, then we have a clear right to encroach on that neutral territory to defend ourselves. With the Sarkozy administration I doubt that would be a problem.

I believe that last sentence is pure fantasy. There's no way Sarkozy would allow us to bomb anything in France. That being said, where do you get authority for the limitations to that authority - (notice and at least a reall attempt at cooperation before unilateral action)?

I take it that you don't mean we need their express permission, which obviously would allow us to perform such an action "under the law of war" without even the AUMF or the Constitution as currently so interpreted.
6.13.2007 6:07pm
Justin (mail):
Absolutley. We would have an obligation to notify the French and elist their cooperation in capturing the terrorists, but the laws of war is very clear on this point, if the enemy is conducting hostile operations out of neutral territory, then we have a clear right to encroach on that neutral territory to defend ourselves. With the Sarkozy administration I doubt that would be a problem.

I believe that last sentence is pure fantasy. There's no way Sarkozy would allow us to bomb anything in France. That being said, where do you get authority for the limitations to that authority - (notice and at least a reall attempt at cooperation before unilateral action)?

I take it that you don't mean we need their express permission, which obviously would allow us to perform such an action "under the law of war" without even the AUMF or the Constitution as currently so interpreted.
6.13.2007 6:07pm
ReaderY:
ATRGeek,

The Milligan Court said that Milligan didn't act in association with and under the direction of the Confederacy; the Quirin Courst said that the petitioners admitted to having acted at the German army's direction. That made all the difference. This is an essential element, so it's not a hypertechnical point.
6.13.2007 6:09pm
David M. Nieporent (www):
First, alleged POWs are entitled to process: a status hearing.
They are not. The only time a POW is entitled to a hearing is if we want to treat him worse than a POW; until we give him a hearing, we must give him the protections of POW status. It's Article V of the 3rd G.C.
Second, they cannot be held "indefinitely". Rather, they can only be held until the cessation of hostilities.
Um, that is indefinitely. That's why I didn't say "forever." There is no scheduled end to a war, therefore, their detention is indefinite.
As many have pointed out, this is the fundamental problem with holding people as combatants when the "war" in question is metaphorical--metaphorical "wars" don't have a definable end, so you are de facto holding them indefinitely.
That may indeed pose a problem, but the Geneva Conventions provide no succor for those who encounter this problem.
6.13.2007 6:20pm
Mark Bahner (www):
I must admit I'm absolutely stunned by what I've read in the last few days. Not so much by what has been written, but by who has written it. Lawyers! People with actual degrees in Law! Consider this:

1) One lawyer tells me that the U.S. was at war with the Empire of Japan from the moment Pearl Harbor was attacked, not from the moment the U.S. Congress passed a Joint Resolution declaring war on Japan. He assures me the U.S. STILL would have been at war with Japan, even if the U.S. Congress had voted DOWN the Declaration of War against Japan(!):


Absolutely. Congress cannot negate a war by voting against a declaration of war any more than it can negate pi by voting to declare pi to be something else.


I'd really like to conduct an informal poll. Do you agree or disagree that the U.S. would have been at war with Japan after Pearl Harbor even if the Congressional Declaration of War against Japan had been voted *down*? And do you have a degree in Law?

2) Now Orin Kerr is writing on the "continuum between war and crime". (Not to mention the idea of judging people by how they "see themselves!")

I don't see any "continuum" at all. Wars are conducted between governments. I don't see any gray area at all in items 6, 8, and 9:

6. "Suspected Al Qaeda terrorist seized in U.S. after entering the U.S. to launch another 9/11."----> Does the government in this non-U.S.-citizen's country know of his evil plans? If not, how can it possibly be related to war? When Algerians who'd been living in Canada came south to blow up the Space Needle, do we consider even remotely that Canada may have committed and act of war against us? Of course not! And has Algeria committed an act of war against us? Not if Algeria has no idea what these men are going to do.

8. "U.S. citizen who lives in Detroit and suspected to be a supporter of Al Qaeda; evidence suggests he sent $10,000 to a 'charity' that is really a fun to help Al Qaeda launch more attacks in United States." ----> Of course the U.S. government approve of attacks against its citizens and itself by groups funded by its own citizens, so this is obviously also a potential crime. It has nothing to do with war...unless the charitable organization is connected to a foreign government, and the foreign government is aware of actions.

9. "Egyptian citizen in the U.S. on a tourist visa seized in the U.S. on suspicion of planning attacks against a U.S. military base." ----> Does Egypt suspect or know this person is going to do something wrong? If not, of course it's a crime, and has nothing to do with war.

The operative question in ALL these cases is, "Does the person in question operate for or with the knowledge the government with which he has citizenship?" If the person isn't somehow an agent or operating with knowledge of a foreign government, of course it has nothing to do with war.

To me, these items seem so basic I can't understand how anyone (particularly someone with a law degree) could disagree. But how about it…especially you folks with law degrees:

1) Could we have been at war with Japan in WWII, even if Congress had voted DOWN the Congressional Declaration of War against Japan following Pearl Harbor?

2) Are any of my assessments of items 6, 8, and 9 wrong or controversial?
6.13.2007 6:24pm
Anderson (mail) (www):
ReaderY: That made all the difference.

Please quote the language from Quirin stating that the source of the Quirin defendants' direction "made all the difference." Thanks!
6.13.2007 6:29pm
ATRGeek:
David Drake,

That part of the Hamdi opinion is simply about whether the 2001 AUMF applied to the Taliban. On the issue of who is a combatant, the Court was extremely careful about the narrowness of its decision:

"The threshold question before us is whether the Executive has the authority to detain citizens who qualify as 'enemy combatants.' There is some debate as to the proper scope of this term, and the Government has never provided any court with the full criteria that it uses in classifying individuals as such. It has made clear, however, that, for purposes of this case, the 'enemy combatant' that it is seeking to detain is an individual who, it alleges, was '"part of or supporting forces hostile to the United States or coalition partners"' in Afghanistan and who '"engaged in an armed conflict against the United States"' there. Brief for Respondents 3. We therefore answer only the narrow question before us: whether the detention of citizens falling within that definition is authorized."

That is what the Court is referring to in your quote when they say "individuals falling into the limited category we are considering".

ReaderY,

What passage from Milligan do you have in mind?
6.13.2007 6:32pm
Brad Sallows:
"Wars are conducted between governments."

Irregular wars (between governments and those who are not-governments - even if they aspire to be so) are not wars?

>1) Could we have been at war with Japan in WWII, even if Congress had voted DOWN the Congressional Declaration of War against Japan following Pearl Harbor?

As a layperson, I ask whether you mean to draw a distinction between something we might call "War" - a state of hostilities (including military operations) between recognized national governments which is legally affirmed by the competent authority of each government - and "war" - a state of hostilities (including military operations) between two or more parties. What is served by doing so?

Leaving aside the practical world and reducing scope to the legal one, I hazard a guess that most international customary and treaty law does not support the propositions that "wars are conducted [only] between governments" or that a (reciprocal) formal declaration is necessary.
6.13.2007 6:50pm
ATRGeek:
By the way, this issue was not in fact litigated in Quirin, since they apaprently never claimed they were not combatants. Moreover, the basic reason they were unlawful combatants was that they ditched their uniforms after landing. So, the fact that they were uniformed members of the German armed forces is not exactly a trivial fact.

David N.,

US and international law has interpreted Article 5 of the Third Convention as giving all detainees who raise doubts about their POW status a right to a status hearing. As specified in Army Regulation 190-8 1-6(10)(c), a possible status after a status hearing is "Innocent civilian who should be immediately returned to his home or released."

POW detention is not indefinite, even though the length of the detention is not known in advance. Rather, the end of the detention is defined by the cessation of hostilities, as provided in Article 118 ("Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities"). It is the fact that the standard in Article 118 has no application to a "war on terror" that renders the relevant detentions truly "indefinite". This is a crucial point to understand: the problem is not that we don't know when the "war on terror" will end, because it is true that applies to any war. The problem is that "the end of the war on terror" has no ascertainable meaning, which renders Article 118 meaningless in this context. And that is why their detention is literally indefinite.

Finally, I agree the Geneva Conventions don't solve this problem, but they do not create it either. That is because the Conventions do not authorize holding these people.
6.13.2007 7:07pm
David M. Nieporent (www):
ATRGeek, even assuming that one can "interpret" the words of an article to be radically different than the text, the Army Regulation you cite -- which I don't have a problem with -- doesn't support your point. The fact that a possible outcome of a hearing might be a determination that one is an innocent civilian does not mean that one is entitled to a hearing.

POW detention is not indefinite, even though the length of the detention is not known in advance.
Yes, it is. Those two are the same thing. Indefinite does not mean infinite. It means that the detention has no fixed length, which POW detention does not. A POW could be held for 5 months, 5 years, 50 years, or 500 years. (Okay, probably not the latter.) There is no (legal) guarantee a traditional POW will ever be released. It could be the invasion of Grenada or the 100 Years War.

I agree that this is more troublesome in the case of the War on Terror because it is harder to define when he is entitled to be released -- but that doesn't negate our ability to hold someone captured in such a war as a POW.
6.13.2007 7:24pm
Anderson (mail) (www):
I agree that this is more troublesome in the case of the War on Terror because it is harder to define when he is entitled to be released

When there are no more terrorists? When no one experiences terror any more? "Harder" doesn't begin to cut it, sorry.
6.13.2007 7:26pm
Mark Bahner (www):

When there are no more terrorists? When no one experiences terror any more? "Harder" doesn't begin to cut it, sorry.


Yes, exactly. Mr. Nieporent, why don't you tell us the event or events that you think will END this hypothetical "War on Terror"?

Which one of the present tens of thousands of members of al Qaeda will sign the surrender treaty that all the rest of them will agree is binding on them all? And when do you expect that surrender to be signed? This century or next?
6.13.2007 10:03pm
Mark Bahner (www):
Hi Brad,

I wrote, "Wars are conducted between governments."

You responded, "Irregular wars (between governments and those who are not-governments - even if they aspire to be so) are not wars?"

Let me withdraw my general comment...or make it more specific, since I'd rather address the specific situation at hand, rather than vague generalities or hypotheticals.

If the question is, "Could al Qaeda ever be at war with the U.S. government?"...the answer seems to me to be very clearly, "No...not unless they gain control of the government of a country."

I maintain that private citizens such as members of al Qaeda can never at war with the U.S. government, as recognized by the U.S. Constitution.

As discussed just previously, private citizens can't be at war with the U.S. government, because the U.S. government under U.S. law can't recognize them as a legitimate counterpart. For example, if Canada were to wage war with us, we'd recognize their government as a legally recognized counterpart. But suppose 10 families in Saskatoon, Saskatchewan decided they were at war with the U.S., and came down in light trucks and shot up a few North Dakota towns. Would we say that such actions were legally recognized as "war" under U.S. law? I say, "Of course not!" Only if those people were somehow aided or sent with the approval of the government of Canada would we recognize it as "war" under U.S. law.

Do you agree with me that al Qaeda, a group of private citizens not sponsored or approved of by any government, can not be in any "war" with the U.S.? That they can only be criminals (like the hypothetical families from Saskatoon), not soldiers?

I asked, "1) Could we have been at war with Japan in WWII, even if Congress had voted DOWN the Congressional Declaration of War against Japan following Pearl Harbor?"

You responded, "As a layperson, I ask whether you mean to draw a distinction between something we might call "War" - a state of hostilities (including military operations) between recognized national governments which is legally affirmed by the competent authority of each government - and "war" - a state of hostilities (including military operations) between two or more parties."

Ummmm...let me restate that, too. I'll somewhat rewrite history, to be hypothetical. The Japanese attacked Pearl Harbor with the intent of completely wiping out the U.S. Pacific Fleet. They didn't do so in part because not all of the fleet was in port (e.g. some aircraft carriers and a battleship were not in port). Let's say that all the ships had been completely wiped out. And let's say that all the troops were somehow miraculously not in the ships...so that not one single person was killed. Therefore, the Japanese government would have accomplished its goal. (They certainly had no desire to conquer and occupy the U.S.!)

Now, suppose all those ships being wiped out caused FDR to make his same request for a Declaration of War. But suppose that, due to the fact that no one died, a majority of the Congress simply decided that a war with Japan would cost too many lives (not to mention many more ships and planes). So suppose a majority had voted DOWN the request for a Declaration of War?

Would we still have been at war with Japan, even though the Congressional declaration of war was voted down?
6.13.2007 10:40pm
Brad Sallows:
>Would we say that such actions were legally recognized as "war" under U.S. law?

What would be the excuse for exercising the right of pursuit (if they chose to retreat across the border and execute hit-and-run raids) if not that a de facto state of war existed? Returning to the concrete example, Al Qaeda's aims seem to support a line of operations which basically consists of removing the US immediate presence which might support the Saudi Arabian government, with a view to replacing the Saudi Arabian government. The aims are manifestly political, and the means manifestly include force of arms. That is war. From the narrower perspective of legal definitions, I see the evolution of international law being toward broader recognition of non-government factions (with or without support of a recognized government), not away.

If the Japanese had executed a single hostile act against the US without loss of life and not made their own declaration of war, conceivably the US could have chosen to not retaliate. I suppose that is always an option for a single distinct act of violence. But the Pearl Harbor attack was not that. It was part of a campaign of military operations in support of a broad political goal.

So where should the parts of Al Qaeda which employ force of arms fit in?
6.14.2007 1:34am
ATRGeek:
I am using "indefinite" in the sense of "vague or not clearly defined or stated" (and I believe the Fourth Circuit was as well). If I wanted a term for "not fixed or known in advance", I would probably use "indeterminate". But all this is just semantics, of course. The important point, as Anderson notes, is that applying Article 118 to the "war on terror" is not just "harder", but impossible.

And the reason it is not just "harder" is that it is actually a category mistake to call our efforts to deal with terrorism a "war on terror" in any literal sense. In other words, the reason that Article 118 does not apply is that there is no such thing as a "war on terror" except in the metaphorical sense, and Article 118 assumes a literal war, not a metaphorical one.

Part of the problem is that people seem to be arguing that anybody using violent means (or "force of arms", or similar phrases) for a political purpose is engaged in "war". As has been noted several times, this argument has been rejected by the United States in the past, most notably by President Reagan. And for good reason: again, the laws of war are based on a set of assumptions about the nature of wars, and they simply do not fit well if you expand "war" to include all political violence.
6.14.2007 5:21am
ATRGeek:
Although to be clear about something: people captured in battle during our invasions of Afghanistan and Iraq should in fact be treated under the laws of war, because those were literal wars, not metaphorical ones. It becomes a metaphor when people claim that a student in Peoria, Illinois, who allegedly was planning to hack into banking systems in furtherance of al Qaeda's political goals is conducting war.
6.14.2007 5:40am
Barry (mail):
ATRGeek: that's important, that the government (and the MSM) uses the term 'war' rather loosely. I doubt that Mr. Kerr would agree with the executive branch doing as it pleases in the 'wars' on poverty, cancer, drugs, etc.
6.14.2007 9:29am
Barry (mail):
Mr. Kerr: "As a general matter, however, war is about self-protection: we try to disable the enemy from attacking us, and we take whatever measures are necessary to do that. There are limits, of course, conventions as to the laws of war and rules that each side adopts. But by and large the goal of self-protection by disabling future attacks takes priority."

As has been pointed out above, many wars are actually aggressive. The USA, for example, has not waged defensive war for quite some time. Instead, we wage war to protect interests and allies all over the world, with 'ally' being whomever is convenient right at the moment.

But there's one very, very crucial thing about the term 'war', which I'm surprised that you didn't notice.

War is intended to be a temporary condition, not the norm. Readiness for war might be a constant, but the bulk of our lives are lived in peacetime.

A long-term state of constant warfare is not conducive to freedom, judging by history.
6.14.2007 9:32am
Mark Bahner (www):

ATRGeek: that's important, that the government (and the MSM) uses the term 'war' rather loosely.


What has stunned me is that even LAWYERS in these postings and comments use the term "war" "rather loosely."

For example, both Orin Kerr and David Nieporent have referred to the War on Terror (or war on terror) without any quotation marks, as though such a state of affairs really exists.

It doesn't bother me so much when President Bush uses the term War on Terror, because I know he knows nothing about the law. (Although that should probably bother me a lot. ;-))

But it's stunning to me that lawyers would ever refer to the War on Terror as if it is some legally recognized state of affairs. I'd think lawyers would always refer to it as "the metaphorical 'War on Terror'," or "the apocryphal 'War on Terror'," or some such appropriate phrase.
6.14.2007 1:17pm
David M. Nieporent (www):
Although to be clear about something: people captured in battle during our invasions of Afghanistan and Iraq should in fact be treated under the laws of war, because those were literal wars, not metaphorical ones.
Fine -- but note that Mr. Bahner has even rejected the notion that these are wars, in part on the grounds that he mistakenly thinks that Congress hasn't declared war.
6.14.2007 11:26pm
Mark Bahner (www):
ATRGeek wrote:


Although to be clear about something: people captured in battle during our invasions of Afghanistan and Iraq should in fact be treated under the laws of war, because those were literal wars, not metaphorical ones.


David Nieporent responded...

"Fine --..."

Could it be we're making some progress here? Mr. Nieporent, do you agree that the "War on Terror" is just a metaphorical war? Do you agree it's not a real war?
6.15.2007 1:52am
David M. Nieporent (www):
Could it be we're making some progress here?
Not really. You're just trying to change the subject from your claim which nobody supports that we're not at war.
6.15.2007 6:11am
Mark Bahner (www):
"You're just trying to change the subject from your claim which nobody supports that we're not at war."

No, I'm trying to get you to state whether or not you agree that the "War on Terror" (those are quotation marks of YOUR words...see your comments of 6/13 at 6:24 PM) is just a metaphorical war.

Do you agree that the "War on Terror" is NOT a real war?
6.15.2007 8:44am
Just an Observer:
If the "War on Terror" is employed as a meaningful legal term of art, the State Department says that is wrong. Here is was State Department Legal Adviser John Bellinger, the department's highest-ranking lawyer, said:

The phrase "the global war on terror" -- to which some have objected -- is not intended to be a legal statement. The United States does not believe that it is engaged in a legal state of armed conflict at all times with every terrorist group in the world, regardless of the group's reach or its aims, or even with all of the groups on the State Department's list of Foreign Terrorist Organizations. Nor is military force the appropriate response in every situation across the globe. When we state that there is a "global war on terror," we primarily mean that the scourge of terrorism is a global problem that the international community must recognize and work together to eliminate. Having said that, the United States does believe that it is in an armed conflict with al Qaida, the Taliban, and associated forces.


As for me, I basically agree with that statement, which I think is supported by the 2001 AUMF enacted by Congress and directed at those responsible for 9/11. To argue that we are not at war because there is no "declaration of war" is a red herring. I believe we are at war. The precise meaning of that -- what the AUMF authorizes or does not with respect to detention of whom -- is at the core of what is being litigated in the al-Marri case.

(Incidently, I have seen officers of the U.S. government try to push the envelope by introducing the term "global war on terror" into legal papers where it did not belong. But these exceptions were wrong, and Bellinger is right.)

We used to be in a "Cold War," and it was very real as a description of U.S. foreign policy posture. But that did not place the United States in a state of war with the Soviet Union and its allies, and did not privilege us to snatch Soviet citizens or even soldiers from anywhere in the world and detain them as "enemy combatants" in Guantanamo.

To be sure, there were several armed conflicts, real wars, related to the Cold War. The wars in Korea and Vietnam come to mind. And our armed forces were prepared to go to war, totally, against the USSR at any time. But there was no global state of war against all parties who were our Cold War antagonists.

Similarly today, we are not actually in a state of war with "terror," with "Islamic extremists," or with "jihadists," however much we ought to oppose them as a matter of foreign policy.
6.15.2007 1:12pm
Mark Bahner (www):

Having said that, the United States does believe that it is in an armed conflict with al Qaida...


A brilliant finesse and neat dodge of the more specific question.

If the term "War on Terror" is metaphorical, is the term "War on al Qaida" ALSO metaphorical?

Anyone know Mr. Bellinger, and would like to solicit his comment on particular question?
6.15.2007 1:22pm
Mark Bahner (www):

I believe we are at war.


With whom?

With which governments (both national and subnational)?

Or if you think we can be at war with organizations, which organizations?

And finally, to take the smallest subset ignoring multiple personalities ;-), if we are at war with any particular individuals, who are they?
6.15.2007 1:29pm
Just an Observer:
Mark Bahner,

I don't accept your assumption that there cannot be war against non-state actors. Do you think Congress could not authorize making war against non-state actors, and do you have some authority that says that?

You might be interested in this historical summary from the Congressional Research Service, which says of the 2001 AUMF:

A notable feature of P.L. 107-40 is that, unlike all other major legislation authorizing the use of military force by the President, this joint resolution authorizes military force against not only nations but also organizations and persons linked to the September 11, 2001, attacks on the United States. This authorization of military action against organizations and persons is unprecedented in American history, with the scope of its reach yet to be determined. ...


I rather think that is central to what is happening in the al-Marri case today.

But even Judge Motz does not say there is no war. She says al-Marri is not a "combatant." Previously, the Hamdi court said that petitioner could be considered such a combatant, subject to factual review by a neutral tribunal.

Whether the distinction that Motz makes between the Taliban and Al Qaeda holds up as determinative remains to be seen. I think it is not the strongest distinction, and that different elements of geography and the alleged actions of the two detainees are sufficient to distinguish al-Marri from Hamdi -- and make him more like Milligan, who was held to be a civilian actor despite the undisputed fact that the Civil War was real.
6.15.2007 3:23pm
Mark Bahner (www):
Hi Just an Observer,

I don't have time to respond to your comments in detail. (Durham Bulls game to attend...I've got my priorities straight. ;-))

So I'll just repeat my previous questions. You said, "I believe we are at war." I asked:


With whom?

With which governments (both national and subnational)?

Or if you think we can be at war with organizations, which organizations?

And finally, to take the smallest subset ignoring multiple personalities ;-), if we are at war with any particular individuals, who are they?


If you believe we are at war, don't you also have some thoughts about with whom we are at war?

Or do you just believe we're at war, but you don't know with whom?

Best wishes,
Mark
6.15.2007 7:55pm
Just an Observer:
Mark,

Sorry. I was not deliberately ignoring your question, but just assumed the answer was apparent from the context of my comments. I believe we are at war with Al Qaeda and the Taliban. I also think the President thinks so, and that Congress clearly authorized him to determine that.

Now, I do not pretend to be an expert at international law or the law of war, and I admit that my opinion is grounded first in my view of the Constitution, Supreme Court precedent and a commonsense interpretation of the text Congress enacted in 2001. Both our political branches agreed to make war on Al Qaeda, I think, and I know of nothing in the Constitution that says they can't do so. I just do not agree the 2001 resolution authorized everything the administration claims.

I also am confident that if the facts of Hamdi were altered slightly, such that he happened to have been carrying arms with the Al Qaeda fighters in Afghanistan instead of the Taliban, the Court plurality still would have held that he could be detained by our military because "to prevent a combatant's return to the battlefield is a fundamental incident of waging war."

As an aside, what I don't understand is who the heck we are legally at war with in Iraq! But that is mostly another issue, and another AUMF.
6.16.2007 12:04am
Mark Bahner (www):

Do you think Congress could not authorize making war against non-state actors, and do you have some authority that says that?


Well, contrary to what Tom Holsinger might think (hopefully, his analysis of law is better than his analysis of human character!) I have absolutely no faith in anything. So I'm not a big fan of authority in anything. Whenever I hear a statement by an authority, I generally apply two rules immediately:

1) Question authority, and
2) Trust no one (thanks, Mulder!).

But if you're looking for authorities, you seem to have provided one you yourself trust. You quote the Congressional Research Service as writing:


This authorization of military action against organizations and persons is unprecedented in American history,


Now, what do you think the odds are that this authorization is legal, even though it's "unprecedented in American history"? Don't you think the odds are that, if the authorization was legal, it would have happened sometime in 230+ years of American history?

But that's hardly an airtight argument. Let's look at some other arguments based on simple logic that (I think) are more persuasive:

1) War can't be waged on groups like al Qaeda because they accept no earthly authority. Look at what happened with Japan and Germany in WWII. When the Japanese Emperor told his army to surrender, that's what they did. And when Hitler committed suicide like the gutless worm he was, and the highest ranking German generals surrendered, the rest of the German military accepted that.

But suppose two years from now, Osama bin Laden walked into a U.S. army base in Afghanistan with a group of men, women and children, and plagiarized perhaps the finest statement of surrender ever uttered:


I am tired of fighting. Our chiefs are killed. Abu Musab al-Zarqawi is dead. Mohammed Salah is dead. The old men are all dead. It is the young men who say yes or no. He who led the young men is dead. It is cold and we have no blankets. The little children are freezing to death. My people, some of them, have run away to the hills and have no blankets, no food. No one knows where they are--perhaps freezing to death. I want to have time to look for my children and see how many I can find. Maybe I shall find them among the dead.

Hear me, my chiefs. I am tired. My heart is sick and sad. From where the sun now stands, I will fight no more forever.


Do you think that all the other al Qaeda members would pledge to stop killing, too? No, they'd say, "Osama bin Laden is an apostate. Allah is commanding us to kill."

2) The members of al Qaeda have no code. They are criminals, not soldiers. This is very closely related to item #1. In fact, it's probably the more realistic way to look at item #1.

3) The U.S. and all other free democracies will never surrender or stop fighting people who kill innocent men, women, and children. Murder is a crime. What al Qaeda does is criminal behavior, not honorable military action. So no honorable military (e.g., our military) would EVER surrender to al Qaeda. I don't mean in a single fight (where they will undoubtedly die without furthering any objective if they don't surrender). I mean in the final sense...in the sense of surrendering as the Japanese and German militaries did in WWII. Can you imagine any U.S. general ever sitting down and signing on behalf of the U.S. that al Qaeda can now rule us?

4) Al Qaeda is not a government, therefore, it has no territory. And since al Qaeda members don't even reveal themselves (they hide their identities), even if all members were somehow removed from one country (which is like saying, "all murderers have been removed from this country!) they could simply go in secret to the next country.

5) In a war, if one suspects the enemy leaders (e.g. political leaders or senior military membership) are all in one house, the U.S. military could just send a laser-guided bomb into that house. In contrast, suppose we suspected all of the top leadership of al Qaeda was in a duplex in Bremerhaven, Germany. Could the U.S. military simply send a plane from a U.S. base in Germany to destroy the duplex? Of course not. That's because the world is currently set up as a group of nation-states. It is legally wrong--and very, very DANGEROUS--for the U.S. government to bypass the governments of other nation-states to kill or even imprison their citizens. That's a crime. In fact, if another country did that to U.S. citizens, the U.S. government would probably treat it as an act of war.

All these simple elements of logic indicate that it could not possibly be in accordance with the U.S. Constitution for the U.S. government to wage war on private organizations within nation-states. Such a war would never, ever end (due to items 1 through 4). The Founding Fathers were smarter than to design a Constitution that would allow for a war that would never end. Further, the U.S. constitution is set up for the U.S. government to deal with other governments of other nation-states, not private organizations within those nation-states. As I noted, under U.S. law, if the government of another country killed or kidnapped a U.S. citizen from U.S. soil, we would consider that a crime. And if the leaders of that country's government did not surrender themselves to U.S. authorities to answer for that crime, the U.S. government would probably consider it an act of war.

As I've written before, I find it absolutely stunning that men trained in law apparently can't see these absolutely basic logical arguments that indicate that there's absolutely no way U.S. law allows the U.S. government to wage war on organizations or individuals within nation-states.

But everyone please note that the fact that U.S. law PROHIBITS such behavior by the U.S. government actually makes us SAFER, not more at risk. In the example I gave, suppose the U.S. government was right about the al Qaeda leadership in an apartment in Bremerhaven, Germany. And suppose we sent a laser-guided bomb that killed ten al Qaeda leaders, but also four completely innocent German citizens. The German government would be ***outraged*** (as would most of the German populace). What do you think is more dangerous...the U.S. government telling the German government about the ten al Qaeda leaders, with the risk that the German government wouldn't capture them? Or the risk of having the entire German government outraged at our government? Or suppose we did the same thing in, for example, Pakistan? (Actually, we HAVE done the same thing in Pakistan.) Do you think that the government of Pakistan would be more inclined, or less inclined, to help the U.S. government when the U.S. is conducting attacks that accidentally kill some innocent civilians?

Not only is the U.S. waging war on organizations and individuals illegal...it's dangerous...to us!
6.16.2007 12:35am
Mark Bahner (www):

I believe we are at war with Al Qaeda and the Taliban.


Well, the Taliban as far as I know is not the government anywhere in Afghanistan right now. But they WERE the government of some areas when we initially attacked them in October 2001. So I'd agree that the U.S. government could be--or could have been--at war with the Taliban.

But Al Qaeda is a very different matter. See my previous lengthy comments.


I also think the President thinks so, and that Congress clearly authorized him to determine that.


As I've written before, I don't think the President knows --or cares, for that matter--anything about The Law. I'd be very curious to see what his results would be if he ever took a little pop quiz on the Constitution. Not really difficult stuff. Stuff like, "List by number and summarize the amendments that form the Bill of Rights." "What articles of the Constitution deal with the three branches of government?" "What was your oath of office?"

Remember that this is a man who (correctly) stated before he became President that the Campaign Finance Reform law was unconstitutional. Then he signed it anyway! Why would anyone trust such a man to follow his oath of office to "Preserve, protect, and defend the Constitution of the United States"?

As for Congress...there is nothing in the Constitution that allows Congress to abrogate its duty under the Constitution. The Constitution only authorizes Congress to declare war. It does NOT give Congress the authority to give away that power. The Founding Fathers did that because they very wisely understood that giving one man the power to both make war (i.e., determine who the government would be at war with) and wage war was very, very dangerous.

And the Founding Fathers also recognized that the proper relationship was for the U.S. government and governments of other nation-states to be equals. They did not expect the U.S. government to go AROUND the governments of other nation-states to deal with individuals within those nation-states as equals! (We have an Ambassador to Japan. We don't have an Ambassador to the Autoworkers of Japan.)


As an aside, what I don't understand is who the heck we are legally at war with in Iraq!


Yes, I doubt the Founding Fathers...who wrote this into the Constitution:

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;


...would see the U.S. army fighting in Iraq essentially four years after the fall of Saddam Hussein's government as "necessary and proper" to provide for "the common defence." (Not of the United States, anyway!)
6.16.2007 1:37am